060 NLR NLR V 64 THE QUEEN v. D. J. F. D. LIYANAGE and Others PDF

The Queen v.
Liyanage and others SIS
1962 Present: T . S. Fernando, J ., L . B. de Silva, 3., and Sri Skanda R ajah , J .
W QTJEEN v. D ..J . F . D . L IY A N A G E and others
Trial at Bar No. 1 of 1962
Trial-at-Bor under ss. 4, 8 and 9 o f Criminal Law (Special Provisions) A ct, No. 1 o f
1962—Direction and nomination o f Judges effected in the English language
only—;Communication thereof to Court in English— Validity o f procedure—
Powers o f M inister to direct a Trial at B ar and to nominate Judges— Constitu
tionality— Inadmissibility o f evidence o f mala fides in the M inister— Effect o f
words “ shall not be called in question in any Court ” — Constitution o f Ceylon— ’
Separation o f legislative, executive and judicial p o w e r s J u d i c i a l power ” —
Criminal Procedure Code, ss. 216, 440A — Official Language A ct, No.. 33 o f
19S6, s. 2— Language of the Courts A ct, N o. 3_of 1961— Cevio^CCbnsiituium)
Order in Council, 1946, ss. 29 (I), 52, 88— Courts Ordinance, ss. 6, 21, 51—
Applicability o f principle that justice should not only be done, but should
, manifestly be seen to be done.
Section 2 o f the Official Language A ct, N o. 33 o f 1956, reads as fo llo w s :—

*
“ The Sinhala language shall be the one official language o f Ceylon :
Provided that where the Minister considers it impracticable to commence

th e use o f only th e Sinhala language for any official purpose immediately
on the com ing into force o f this A ct, th e language or languages hitherto used
fo r that purpose m ay be continued to b e so used until the necessary change
is effected as early as possible before the expiry o f the thirty-first day o f
D ecem ber/ 1960, and, i f such change cannot b e effected b y administrative
order, regulations m a y b e m ade under this A ct to effect such change. ”
Sections 8 and 9 o f the Criminal Law (Special Provisions) A ct, N o . 1 o f 1962,

read as follows :—
“ 8. A n y direction issued b y the Minister o f Justice under section 440A

o f the Criminal Procedure Code shall b e final and conclusive, and shall n ot
b e called in question in any Court, whether b y w ay o f w rit or otherwise. •
I
9. W here the Minister o f Justice issues a direction under section 440A
of-th e Criminal Procedure Code that the trial o f any offence shall be held
before the Supreme Court at Bar b y three Judges w ithout a ju ry , the three
Judges shall be nom inated b j the Minister o f Justice, and the Chief Justice
i f so nominated or, i f he is n o t so. nominated, the m ost' senior o f the three
Judges so nominated, shall b e the president o f the Court.
The Court consisting o f the three Judges so nom inated shall, fo r all purposes,
b e duly constituted, and accordingly the constitution o f that Court, and its'
jurisdiction to tr y that offence, shall n o t be called in question in any Court,
whether b y w ay o f w rit or otherwise. ”
On the 23rd June 1962 the Minister o f Justice, purporting to a c t under section
440A o f the Criminal Procedure Code as amended b y section 4 o f the Criminal
L aw (Special Provisions) A c t, N o. 1 o f 1962, directed that certain persons be
'tried before the Supreme Court a t Bar b y three Judges w ithout a ju ry. There-
- after, on the same day, purporting t o a c t u n d e f section 9 o f the Criminal Law
' . . .
1 4 ,16.& 16— lxtv ■ :-

_ 2—It 6478—1,888(12/62) '
314 The Queen v. Liyanage and others
(Special Provisions) A c t, he filed in th e Court a docum ent nominating three

Judges to'preside over the trial. T h e direction and nom ination,.and the coin-
munication thereof t o tho Court, woro effected only in the English language
' and n ot in the Sinhala language.
Held, (i) that, even assuming that on or aftor 1st January 19bi official, acts
o f officials .could have been or can b e performed only in the Sinhala language,'
as English is still adm ittedly the language o f the Court,'the communication b y
tho.Minister to the Court b y documents made out in English o f .the direction,
•and nomination o f Judges b y him w as a sufficient com pliance w ith the'existing
law and was n o t rendered null and v o id b y the provisions o f section 2 o f the
Official Language A ct, read with the Language o f the Courts A ct, N o. 3 o f 1961.
' (ii) that section 8 o f the Criminal Law. (Special Provisions) A c t empowering
. the. Minister o f Justice to issue direction that a Trial at Bar b e held b y three
Judges w ithout a ju ry, under section 440A o f the Criminal Procedure Code,
is intro vires the Legislature. ■ (
(iii) th at tho provision in section 8 o f the Criminal L aw (Special Provisions)

A ct that any direction b y tho Minister “ shall not bo called in question inyany
Court ” excludes tho admissibility o f evidence to establish the existence o f mala
fides in the Minister. '■
(iv) . that section 9 o f the Criminal Law (Special Provisions) A c t is ultra vires
the Constitution because (a) the power o f nomination conferred on the Minister
is an interference with the exercise b y the Judges o f the Supreme Court o f the
strict judicial power o f tho State vested in them by virtue .of their appointment
in terms o f section 52 o f the Ceylon (Constitution) Order in Council, 1946, or
. is in derogation thereof, and (b) th e power o f nomination is. one which has
hitherto been invariably exercised b y the Judicature as being p art o f the exercise
o f the judicial power o f the State, and cannot bo~reposed in anyone outside the
Judicature. '• j -
(v) that the Minister’s power o f nominating the Judges, even had it been
intra vires the Constitution, would have offended against the cardinal {principle
th at justice should n ot only be done, but should m anifestly and undoubtedly
b e seen t o b e done.
O r d e r made in respect of certain preliminary objections taken to a

Trial at Bar which, was sought to be held under the provisions o f the
Criminal Law (Special Provisions) Act, No. 1 of 1962.
■ G . G . P o n n a m b a la m , Q .G ., with N . J . K a d i r g a m a r , E . A . G . d e S ilv a
and K . N . C h o k s y , for the 1st and 2nd Defendants, raised certain preli
minary objections.— The Criminal Law (Special Provisions) Act, No. 1
of 1962, and more especially sections 8 and 9 was an attempt on the part
of the legislature to assume an authority where it had none and to fortify
itself by seeking to prevent the constitutionality o f the’ Act being raised
■in' any' court. The first question therefore is whether the legislature
•can by an Act of Parliament immunise itself by withdrawing the powers
of the courts to question the validity of an Act. ... ’ .1 " '•
__ , * ' ' . r ■'
; The (Ceylon) legislature is not supreme and not.-merely Section 29

but every section in the . Constitution is an entrenched clause: because
an amendment can only be passed by a two third majority,.
The Queen v. Liyanage and others Cy
A-'country may be politically sovereign without wtetlegislature being

supreme^; Parliament cannot pass an Act that is ully&jrfres^and at the
same time say that.the Courts caxmot declare it invaliu^djlqoti
“ Constitutional Law o f Great Britain and the CommonwSafefc^fe^ffr3*
edition at pp. 44, 4 7 ; H a r r i s v . T h e M i n i s t e r o f th e I n t e r i o r (1952)
2 Si A ; L . B . 428 at 464; M i n i s t e r o f I n t e r i o r v . H a r r i s (1952) 4 S. A . L . B.
7 6 9 a t 779. ' r. . •
x ,
Sections 8 and 9 of Act No. 1 of 1962 shut out the fundamental
authority of the courts to examine the validity o f ah Act. Legislation
is.bad unless it is for “ the peace, order and good government .of, the
- Island (a requirement of Section 29 (i) o f the 1946 Constitution Order
in Council). The Courts have a right to examine whether a piece of
legislation is for “ the peace, order and good government of the Island ” —
A z i z v . T h o n d a m a n 61 N . L. B . 217 at 222 and 223 ; A s h b u r y .v . E l l i s
1893 A . C. 339 (P, C.) (New Zealand Case) at 341 & 3 4 4 ; P . S . B u s Q o . v .
C . T . B . 61 N . L . B . 491.
Tlie Courts cannot avoid considering the question of jurisdiction in

spite' o f Sections 8 and 9. See T h e Q u e e n v . T h e j a G u n a w a r d e n e 56,
N . L . B . 193 at 206 ; U p p e r A r g b i d A s s e s s m e n t C o m m . v . G a r ts id e s
B r e w e r y 1945 A ll E . B . Vol. I 3 3 8 ; I n r e “ A m a l d o d a B r e s c i a ” 23
N . L.. B . 391 at 3 9 5 ; D e s p h a n d e v . E m p e r o r 1945 A . I. B . (Nag.) 2 3 ;
L iv e r s id )g e v . A n d e r s o n 1931 A . C. 321.
I'
-Sections 8 and 9 say that the direction and nomination shall not be*
questioned in “ any ” court. “ Any court ” cannot include the Supreme
Court. ••,
• ' . r
•The Minister’s direction under section 440A o f the Criminal Procedure.
Code! was bad in law for the following reasons :—
■ ' ‘
■(i)I In the context o f the constitutional position of the time, the

removal of so fundamental a right as trial by jury in 1915 by section
440A of the Criminal Procedure Code was repugnant to the laws of
England, and consequently ultra vires of the Constitution as it stood
in 1915. In regard to the history of Sections 216 and 440A of the Criminal
Procedure Code dealing with trial at bar and especially the constitutional
.background to the introduction of Section 440A in 1915, see:— Ordinance
No. 18 of 1915 (introducing 4 40 A ); Boyal Charter of 1810 (esp. clause 10)
introducing trial by Ju ry; Boyal Instructions 24th November 1910;
Letters Patent 24th November 1910; Ceylon Constitutional Order, in
Council 1920 (esp. sections 4 4 ,4 5 ,4 7 ); Boyal Instructions 11th September,
1920,; Letters Patent 11th September 1920 ; Parliamentary Government
•in tlie British Colonies (1894) 2nd Edition.
• ; (ii). ,The substitution o f “ the'Minister o f Justice, ” for “ the Governor

by 'warrant under his hand ” in section 440A by proclamation under
the powder given by section 88 o f the Constitution Order in Council .o f
1946' " to modify,, add to,' or adapt ” any written law was ultra vires
the' Constitution. The Minister of Justice as a politician and a member
of the Cabinet cannot be equated to the impersonal. Head of State.

In the context of the constitutional background the substitution was
invalid and the Minister of Justice was not the proper authority to issue
the direction under section 440A .
It is incongruous that the sanction of the Governor-General' is

necessary for prosecution under section 104 of the Criminal Procedure
Code while.the hallowed right o f trial by jury may be suspended by a
mere fiat o f the Minister under section 440A.
Other consequences (anomalies and contradictions) would flow from

the attempt to substitute the Minister of Justice for the “ Governor
by warrant under his hand W as it proper for the Attorney-General
to disclose information to the Minister of Justice and had the Ministers
the right'to call for information from the Attorney-General who is a non
political person ? Under our Constitution the Minister of Justice has
no right and is not expected to interfere with the performance of judicial
functions or with the institution or supervision of prosecutions. Nor
has he any power to issue any direction to any court. His functions are
purely ministerial and administrative. The direction therefore was an
unconstitutional and invalid order.
: Then there was the form o f the Direction ; whom does the Minister
direct— the Supreme Court or the Chief Justice ? W hat happens if the
Supreme Court or the Chief Justice ignores it as it transgresses the spirit
oi the constitution ? Conflict between the executive and the judiciary
tfould inevitably arise if the Chief Justice orders a trial at bar by Jury
under section 216 and the Minister under section 440A makes a direction
for trial at bar without a jury. A direction as in this case would be in
direct conflict with the express provisions of section’ 5 of the Criminal
Procedure Code. See:— Criminal Procedure Code Sections 5, 104, 216,
385, 440 A ; Ceylon Constitution Order in Council, 1946 (sections 88, 45,
■46,45 (2 ); Ceylon Independence Order in Council, 1948; Soulbury Report,
paras. 394r-396, 401-405 ; Proclamation in G o v e r n m e n t G a z ette No. 9,773
of 24th September, 1947 ; Proclamation in G o v e r n m e n t G a z ette No. 9,828
of 5th February, 1948 ; I n R e A g n e s N o n a 53 N . L . R . 106.
(iii) The direction of the Minister is also invalid because it is a direction

of a member of the Executive in a cause in which he had great personal
interest leading to bad faith— mala fides. The jurisdiction of the court
flows from the direction of the Minister (of 23rd June 1962). The Court
can go into the question of bad faith. On the unquestioned facts as
contained in the information laid, there was alleged an attempt to over
throw the Government of which the Minister was a member. This
alone is sufficient to establish his personal interest, and bias should be
presumed. N o person interested in the cause should be a'judge. That
" justice must not only be done but should seem to be done ” may be a
hackneyed phrase but has not lost favour.— D e s p h a n d e v. E m peror
1945 A . I . R . (Nag.) 23.
The Queen v. IAyanage ond others 317
Counsel then went on to deal with what he called “ the second limb of
the argument ” , viz., the jurisdiction and constitution o f the court: the
^nomination of the judges by the Minister. There is no legislation here
or anywhere which contains in one small Act principles and devices so
fundamentally opposed and abhorrent to the way justice is normally
administered in criminal cases. The whole scheme of the Act reveals a
purpose different from what appears on the face of the Act. The legisla
ture cannot do indirectly by a subterfuge what it cannot do directly.
Some of the objectionable features of the Act are : the creation of new
offences making them retroactive ; the creation of a new court specially
constituted on the nomination of Judges by a Minister ; the provision
that no court can question the direction of the Minister or the constitution
and jurisdiction o f the court; the laying down of procedure by the court
of trial itself; confining the authority and jurisdiction of the court to
one special case ; providing for the expiry of the provisions of the Act as
regards this case ; suspending the operation of certain sections of the
Criminal Procedure Code dealing with the investigation of cognizable
offences; amending the Evidence Ordinance and fundamental rules
thereunder, admitting hearsay and admitting confessions obtained at
a time when the law made them inadmissible ; reposing in the Inspector-
General of Police and his associates an uncontrolled power for preventive
detention on mere suspicion and not on reasonable grounds; detention
under conditions which were not published ; right to suspend both the
provisions of and rules under the Prisons Ordinance ; startling innovation
of trial i n a b s e n tia .
Certain dates are significant: Onthe22ndtwonewjudges were appointed

to the Supreme Court and on the 23rd came the direction, the information
and the nomination o f the judges of this court.
The nomination of the Judges by the Minister was a violation of the

Constitution and ultra vires the Constitution. It was an open attempt’
to interfere with one of the entrenched institutions in the Constitution,
viz., an independent judiciary.
One reason why this cannot be done is that under our Constitution
there is a separation of powers. There is clearly a three-fold division o f
governmental powers between the 3 main organs. The separate headings
“ The Legislature “ The Executive ” and “ The Judicature ” (Parts m ,
V and V I of the Constitution) must be given due weight. See I n g l i s v .
R o b e r ts o n 1898 A . C. 616 at 624. W e do not have a complete separation
of powers but there is a definite separation and greater than in England
See Jennings & Tambiah : Vol. 7 British Commonwealth p. 76. • Although
the Judicature is dealt with in Part V I it is not complete in itself, for the
f ramers of the Constitution appear to have adopted institutions as they
found them at that time. The Constitution does not say what tho
Supreme Court is. For this purpose we must look 'to statute law lik e
the Courts Ordinance to complete the picture.
2----- E. M 7S (12/62)
It is quite clear that the Constitution tried to establish the independence

of the judiciary by seeing to it that the executive did not have a hand
in the appointment, removal and salaries o f judges. That was the purpose
too of the Judicial Services Commission : to prevent executive interference.
See S e n a d h ir a v . B r i b e r y C o m m is s io n e r 63 N . L . R . 313 at 317 ; T h e
B r a c e g ir d le c a s e 39 N . L. R . 193 at 210.
The relevant sections of the Criminal Law (Special Provisions) Act

must be considered in the light of the complete independence of the
judiciary well established in the past. Traditional and historical usages
and practices must bo taken into consideration in the interpretation of
statutes.— N a i m v. U n i v e r s i t y o f S i . A n d r e w s 1909, A . C. 147.
When the executive could not and dared not make a frontal attack on
the independence of the judiciary, could it by legislation, seek a colourable
device to establish a court parallel to the Supreme Court and thereby
nullify the independence of the judiciary 1 This is a case of the executive
seeking through an act of the legislature to do indirectly what it cannot
to directly. In such cases the Courts will examine the true character
of the legislation (the pith and substance) to decide whether it is iritra
v ir e s the Constitution. On examination the Act in question reveals
a concealed purpose and endeavours to achieve by a legislation passed by
an ordinary majority something prohibited by the well established
principle of the independence o f the judiciary which the Constitution
itself safeguards. S ee:— K o d a k a n P i l l a i v . M u d a n a y a k e 54 N . L. R .
433 at 4 3 8 ; A . G . O n ta r io v . R e c i p r o c a l I n s u r e r s 1924 A. C. 328 at
337 ; U n i o n C o l l i e r y C o . v . A tt o r n e y -G e n e r a l o f B r i t i s h C o lu m b ia 1899 A . C.
580; A tto r n e y -G e n e r a l o f O n ta rio v. A tto r n e y -G e n e r a l o f D o m in io n o f
C anada 1896 A . C. 348 ; C a n a d ia n F e d e r a t io n o f A g r i c u l t u r e v. A t t o r n e y -
G e n e r a l o f Q u e b e c 1951 A . C. 179 at 195.
The nomination of the Judges by the Minister also destroys the oneness
and identity of the Supreme Court. Section 52 of the Constitution refers
to “ the Supreme Court ” but does not say what it is. It seems to
have adopted the institution as it was at the time. But the Courts
Ordinance 1889 and the earlier Charters (1801, 1810, 1811, 1833) make
absolutely clear the “ oneness ” of the Supreme Court. [In reply to
Court, Counsel said it was not necessary for him at this stage to claim
that certain sections of the Courts Ordinance were part o f the Consti
tution although that was his view. But he wished to state that section
52 of the Constitution Order in Council, section 6 and section 3 and
section 41 of the Courts Ordinance, and clause 5 of the Charter of 1833
were all connected up and established beyond doubt the oneness and
identity of the Supreme Court.] Section 52 of the Constitution must
be examined against the background of the past. There cannot be
two parallel Supreme Courts or a subdivision o f the Supreme Court.
Although section 9 of the Criminal Law (Special Provisions) Act speaks
of the “ Supreme Court ” , what it brings into existence is not the Supreme
Court. Nomination of the Judges by a Minister is totally foreign to
The Queen v. IAyannge and others 319
the institution of the Supreme Court. In addition it is repugnant to

the concept of the independence of the judiciary and something utterly
unknown to and u lt r a v i r e s the Constitution. [Counsel cited various
provisions o f the Courts Ordinance, the Court of Criminal Appeal
Ordinance, and the Parliamentary Elections Order in Council to show
that constituting a bench to hear a case has always been a duty of the
Chief Justice himself or a matter for the internal arrangement of the Court.]
Nowhere can an “ alien ” hand interpose itself and attempt to nominate

judges. The moment a foreign hand comes in and picks 3 out o f the
panel of Supreme Court Judges the resulting court loses the character
of the Supreme Court, and what it forms is a tribunal of 3 Supreme
Court judges— but not the Supreme Court. The reference in section 9
of Act 1 of 1962 to “ the Court consisting of three judges ” is an appre
ciation of this fact, and the declaration that it is “ duly constituted ”
arises from an inner consciousness o f its inherent weakness. See
E n g i n e e r ’ s C a s e 1913 A . C. 107.
The position of the Minister of Justice as recommended in Articles

394, 395, 396 of the Soulbury Report is important. There could be no
uestion of the Minister of Justice having any power o f interference as
regards the institution of criminal or civil proceedings. The Manual of
Procedure cannot be interpreted to give the Minister such a power. Any
Prime Minister allocating functions must allocate them within the bounds
of the Constitution.
[In reply to Court, Counsel said that it was particularly section 9 of

the A ct of 1962, with its power of nomination by the Minister, whic
offended the Constitution. It offended Part IV of the Constitution,
especially sections 52 and 53. Inherent and implicit in these provisions
is the effort of the Constitution to preserve the independence of the
judiciary and prevent the taint of influence by the executive. In
answer to Court whether it was not the judicial function that was pre
served, Counsel said that that could only be done by isolating the
judiciary from any possible taint of executive influence. He referred to
a lecture by Lord Justice Denning on “ Independence and Impartiality
of Judges ” in 1954 S. A. L. J. 5 Vol. 71 Part IV at p. 351.]
The nomination of Judges is an interference with the judicial process.

The judicial process in this case starts with the direction.
[Replying to a question by Court whether Act 1 of 1962 would have

been valid if passed by the British Parliament, Counsel replied that the
British Parliament was supreme while Ceylon, Australia, New Zealand,
etc., had written Constitutions. He submitted that legislation in Ceylon,
to bo in tr a v ir e s the Constitution, must not only observe section 29 (2)
but also section 29 (1) and be for “ peace, order and good3 ovemment ” .]
0. with S . J . K a d i r g a m a r , E . A . G . d e S ilv a ,
0 . P on n a rrib d U im , Q .G .,
R . A . K a n n a n g a r a and K . N . G h o k s y , for the 3rd Defendant.
320 Tlie Queen v. Liyanage and others
E. O . W i k r a m a n a y a k e , Q .G ., with A . 0 . M . A m e e r , R . A . K a n n a n g a r a
and G . T . S a m e r a w ic k r e m e , for the 4th Defendant.— It is clear law that
the court has the power to decide whether it has jurisdiction to hear
the case, and if there is anything that has infringed the Constitution,
to declare it u ltr a v i r e s . See Q u e e n v . T h c j a G u n a w a r d e n e 56 N . L . R .
193.
. Section 29 of the Constitution Order in Council of 1946 provides

that Parliament may “ make laws for the peace, order, and good govern
ment of the Island ” . There is an overwhelming presumption that
Parliament legislates for peace, order and good government but it
is not an irrebuttable presumption. When in a given case that
presumption is rebutted it is the duty of the courts to hold that the
piece of legislation in question is v ltra v ir e s the Constitution. Section
9 of Act 1 of 1962 is not for “ good government Section 29 (2)
provides for further limitations and the opening words of the section
“ no such la w ” are significant. Section 29 (3) makes void “ such”
laws as have already passed the test under section 29, (1) but fall under
the prohibited class in section 29 (2 ).
Even assuming that the direction given by the Minister of Justice was
good, the selection of Judges by the Minister to hear the case was u ltr a
v ir e s the Constitution. According to the Constitution no one outside
can interfere with matters relating to the Supreme Court. Even with
regard to the minor judiciary no one outside can interfere with any
appointment, dismissal or transfer of a judicial officer. See Part IV of
the 1946 Constitution Order in Council.
W e have had Constitutions and changes of Constitutions but the

constitution (i.e. the functions) of th e . Supreme Court has always
remained the same. There has always been only one Supreme Court
and this oneness o f the Supreme Court needs to be stressed. See section
3 and section 6 of the Courts Ordinance. Judges sit as representatives
of the Supreme Court whether singly or collectively and not as Supreme
Court judges. The distribution of work among the judges and the
question of who should hear a particular case is entirely an internal matter.
When there is any outside interference in the selection of a judge or judges
the integrity of the Supreme Court is broken. The picking of three
judges by the Minister to hear this particular case had a disintegrating
effect and the resulting court is not the Supreme Court but only
a panel of three judges of the Supreme Court. Anything that breaks
up the Supreme Court is an interference with the independence of the
judiciary.
As soon as the information is laid the Supreme Court takes cognizance

fo it. In the present case tbe direction came before the information—
a direction to try a non-existing case. The judicial process may be said
to begin with the direction and certainly begins with the information.
The nomination by the Minister that came after the information' was
an interference with the judicial process.
The Queen v. Liyanage and other3 321
The legislature may create new courts but they must not come into
conflict with the courts already functioning and recognised by the
Constitution. See S e n a d h ir a v . B r i b e r y C o m m is s i o n e r 63 N . L. R . 313;
T iU e k a w a r d e n e v . O b e y e s e k e r a 33 N .' L. R . 193 ; H u d d a r t P a r k e r v .
M o o r e h e a d 8 Com. L . R . 330 at 357.
The direction and the nomination do not exist in law. Since the
direction and the nomination were acts of the Minister, they were official
acts. All official acts have to be in the official language : Sinhala.
Neither the direction nor the nomination was made in Sinhala. By
section 2 of the Official Language Act No. 33 of 1956 “ The Sinhala
language shall be the one official language of Ceylon. ” The proviso
to section 2 permitted the use of other languages already in use where
it was impracticable to commence the use of Sinhala immediately, but
the proviso itself fixed 31st December 1960 as the date beyond which
only Sinhala was to be used for all official purposes. The word official
has not been defined in the Act. The ordinary Oxford English Dictionary
meaning of an official act as an act authorized by the Government would
apply.
Neither the Tamil Language (Special Provisions) Act No. 28 of 1958,

nor the Language of the Courts Act No. 3 of 1961 has in any way altered
the position that since 31st December 1960 Sinhala is the one official
language for all official purposes.
It is not contended that Sinhala is the language of the legislature

or the language of the Courts. English may be the language of the courts
but direction by a Minister is an official and an administrative act.
I f official acts are to be in the official language the direction in the present
case does not exist. Since the language of the courts is English, and
the direction has to be in Sinhala, a translation in English may be annexed
but that is only a matter of convenience.
The nomination too is bad for the same reason. But the nomination
would be bad even if it was in Sinhala.
G . G . P o n n a m b d la m , Q .C ., with S ta n le y d e Z o y s a , S . J . K a d ir g a m a r
A . C . M . A m e e r , E . A . G . d e S ilv a , N e v i l l e d e J a c o l y n S e n e v ir a tn e and
M a n i v a s a g a n U n d e r w o o d , for the 5th Defendant.
G : G . P o n n a m b d la m , Q .C ., with S . J . K a d ir g a m a r , E . A . G . d e S ilv a ,
R. A. K an n a n ga ra , K. N . O h o k s y and R . I l a y p e r u m a , for the 6 th
Defendant.
G . G . P o n n a m b a la m , Q .C ., with S . J . K a d ir g a m a r , E . A . G . d e S ilv a ,
G . F . S e th u k a v a la r and R . R . N a l lia h , for the 7th Defendant.
with S . J . K a d ir g a m a r , E . A . G . d e S ilv a
G . G . P o n n a m b a la m , Q .C .,
and R . R . N a llia h , for the 8 th Defendant.
<?. G . P o n n a m b a la m , Q .C ., with S . J .. K a d ir g a m a r , A . C . M . A m e e r ,
E . A . G . d e S ilv a , R . R . N a l lia h and E . C o o r a y , for the 9th Defendant.
0. with S . J . K a d i r g a r m r , E . A . G . d e S ilv a ,
0 . P o n n a m b a la m , Q .G .,
L u c i e n W e e r a m a n tr y and K . V ik n a r a ja h , for the 10th Defendant. -
S. with E . A . G . d e S ilv a , L . K a d ir g a m a r and R . L .

J . K a d ir g a m a r ,
J a y a s u r i y a , for the 11th Defendant.
S. J. with A . C . M . A m e e r , E . A . G . d e S ilv a and

K a d ir g a m a r
K . V ik n a r a ja h , for the 12th Defendant.
G . G . P o n n a m b a la m , Q .G ., with S . J . K a d i r g a m a r , A . C . M . A m e e r ,
E . A . G . d e S i l v a , G . F . S e th u k a v a la r and R . R . N a l l i a h , for the 13th
Defendant.
G . G . P o n n a m b a la m , Q .G ., with S . J . K a d ir g a m a r , A . C . M . A m e e r ,
E . A . G . d e S ilv a , R . R . N a l lia h and E . C o'ora y, for the 14th Defendant.
G . G . P o n n a m b a la m , Q .C ., with S . J . K a d ir g a m a r , E . A . G . d e S i l v a
and R . A . K a n n a n g a r a , for the 15th Defendant.
E . G . W i k r a m a n a y a k e , Q .C .,with M . T ir v e h e l v a m , Q .G ., J . A . L .
C o o r a y , G . T . S a m e r a w ic k r e m e and R . A . K a n n a n g a r a , for the 16th
Defendant.
with S . J . K a d ir g a m a r , E . A . G . d e S ilv a
G . G . P o n n a m b a la m , Q .C .,
and S u n i l R o d r i g o , for the 17th Defendant.
with J . V . 0 . N a t h a n ie l and A . W . N .
E . Q . W i k r a m a n a y a k e , Q .G .,
S a nd ra p ra ga s, for the 18th Defendant.
with R . A . K a n n a n g a r a , L . C . S e n e v ir a tn e and
H . W . J a y e w a r d e n e , Q .G .
P . N . W i k r a m a n a y a k e , for the 19th defendant.— In examining the Ceylon
Constitution it is helpful to ascertain the origin of judicial power in this
country.
In the earliest form of society judicial power came into existence before
the exercise of legislative power. See A n c i e n t L a w — M a y n e 1 3 3 . In the
growth of civilisation, there was first the institution of the Family which
developed into the organisation of the Clan or Race. From here there
grew the organisation or institution known as the State or Nation. In
each of these institutions it was the head of the respective institution that
exercised the judicial power— namely the power to decide disputes.
Then there came’the Greek and Roman civilisations— during which time
the power of judging was transferred by the Head of the State to a few
persons who had specialised knowledge— the Senate— who acted as an
independent judicial body in deciding disputes between man and man
and between man and State.
Next there was the Anglo-Saxon period in England— Henry II made

the first attempt to establish judicial power in an independent body by
setting up courts and itinerant justices. After the attempt by King
Charles to interfere with the judicial process failed the rights and liberties
o f the subject were decided by a body completely independent o f the
executive.
The Queenu. IAyanage and others 323
• In Ceylon before 1796 there existed for a long period an independent

judiciary. See H i s t o r y o f C e y l o n published by the University o f Ceylon
1960 Edn. Vol. 1 at page 558; S in h a l e s e S o c i a l O r g a n is a t io n — Ralph Peiris
147; S k e tc h o f th e C o n s titu tio n — D o y l y — 'p a ge 2 8 ; J e n n i n g s a n d T a m b ia h —
C e y l o n C o n s t it u t i o n p a g e 1 0 1 r e the Dutch Courts.
The terms of the capitulation on 5 .1 1 .1 7 9 6 — clauses 16, 23 and

L e g i s l a t i v e E n a c t m e n ts 1 7 9 6 to 1 8 7 3 , referred to. The rights and liberties
o f the subject already enjoyed were guaranteed. Also a system
o f courts was to be set up. A further principle was recognised
by this capitulation, namely that laid down in C a m p b e ll v . H a ll 98
E . R . 105 (1047) that the fundamental rights of His Majesty’s subjects
are guaranteed to the people of Ceylon. The source o f these fundamental
rights is the Magna Carta and one of those rights is that no man shall
be punished or dealt with except by due process of law. In accordance
with these guarantees the British set up an independent judiciary.
Effect of Sec. 9 of Act No. 1 of 1962 is to undermine all three pillars

o f the temple of justice— the appointment, tenure and dismissal of a
Supreme Court Judge governed by Sec. 52 of the Order-in-Council.
For this reason, See. 9 is u ltr a v i r e s and contrary to the Ceylon Constitu
tion. See Lord Atkin’s judgment in 1 9 3 8 (2 ) A . E . E . 6 0 1 — T o r o n to
C o r p o r a t i o n v . Y o r k { T o w n s h i p ) , A . G . f o r O n ta r io .
1. A p p o in tm en t.
Judicial power can only arise by virtue o f an appointment by the

Governor-General under Sec. 52 of the Constitution Order-in-Council.
Any attempt to interfere with that appointment by a later A ct by the
Executive Authority would undermine this pillar of the temple o f justice.
Once a Judge of the Supreme Court is appointed, lie is vested with the
judicial power of the Supreme Court, i.e. the power to hear and determine
any case that comes up in the Supreme Court. The Judge has the discre
tion to decide as to whether he should in fact hear a particular case.
The effect of Sec. 9 is to leave no such discretion in the Judge. The
Minister is now given the power to say “ Judges A . B. C. shall hear a
particular case ” . Then the other Judges are disqualified from hearing
the case.
The position is that a Judge appointed under Sec. 52 cannot hear this
case even though he is vested with the judicial power of the Supreme
Court. He derives the power to hear this case by virtue of his nomination
and is exercising a power which the Minister has invested in him under
Sec. 9 o f Act No. 1 of 1962. In other words, the appointment by the
Governor General under Sec. 53 of the Order-in-Council becomes irrelevant
when it comes to hearing o f this case. Therefore the power of nomination
in Sec. 9 of Act No. 1 of 1962 is inconsistent with Sec. 52 (1) of the Order-
in-Council.
“ Nominate” means in fact “ appoint” . “ Nom inate” means to

appoint by name. See : S h o r t’s O x f o r d D i c t i o n a r y ; L e tte r s P a t e n t b y w h ic h
J u d g e s o f th e S u p r e m e C o u r t a r e a p p o in te d .
Once the Governor General appoints a Judge of the Supreme Court

under Sec.' 52 there can be no other appointment or nomination. See
A t t o r n e y G e n e r a l, O n ta r io v . A t t o r n e y G e n e r a l o f C a n a d a 1 9 2 5 A . C . 5 5 5 ;
133 L a w T im es 4 3 4 ; W a te r s id e F e d e r a t io n o f A u s t r a l i a v. A le x a n d e r
2 5 C o m m n . L . R e p . a t p a g e 46S. The former case is exactly in point.
The power of a Judge under Sec. 52 (1 ) is to hear cases generally ; this
power cannot then be limited to the hearing of a particular case as is
sought to be done under Sec. 9, because it precludes the other Judges
from hearing this case— this results then in a violation of Sec. 52 (1)
which gives all the Judges of the Supremo Court the power to hear all
cases that come up before the Supreme Court.
2. T en u re.
In Ceylon a Judge of the Supreme Court holds office till he is 62 years

of age unless he retires earlier or is removed from office. A Judge 'can
be removed by an address of both Houses of Parliament. They do not
hold office at pleasure o f the Crown.
When the Minister makes his nomination he in effect says “ You
will hear this case ” i.e., once the trial terminates the Judges are f u n c t u s
o ffic io . This is an a d h o c appointment. See A l e x a n d e r ’ s C a s e 25
Commn. Law Rep. 447.
3. D is m is s a l.
The right or power to appoint' carries with it also the power to dismiss—
the incident o f the power to appoint is the power to remove. See :
Interpretation Ordinance Sec. 14 (/) with Sec. 18 and M y e r s v . U n ite d
S ta tes 2 7 2 . Zl. S . {S . C . R . ) 5 2 .
The Minister can withdraw the nomination on any ground ; there is

no restriction on his right to remove a Judge.
The vesting of the power of nomination in the Minister under Sec. 9

is also in violation of the judicial power of the Supreme Court which is
entrenched in Sec. 52 of the Constitution Order-in-Council. “ Judicial
power ” is the right vested in a Court to determine disputes. As to the
definition of judicial power see dicta per Griffiths C.J. in H u d d a r t
P a r k e r L td . v . M o o r e h e a d S C o m m . L . R . 3 3 0 . Judicial power is created
under Sec. 52. Its source is the Governor General who appoints Judges
to the Supreme Court and it is this appointment that vests judioial
power in the Judges. The definition o f “ judicial power ” in the H u d d a r t
P a r k e r c a s e was followed in S h e ll C o m p a n y C a s e 1931 A . C. 144 and
L a b o u r R e l a t i o n s B o a r d o f S a s k e tc h w a n v. J o h n E a s t I r o n w o r k s 1949
A . C. 134 (149) P. C.
The Queen’V. Liyanage and others 325
The power of nomination is an incident in judicial power which is

entrenched in Sec. 52 and this section is violated when the Minister
is given the power to nominate.
An ancillary power (like the power of nomination) is so inextricably
bound up with the exercise o f judicial power that it cannot be interfered
with. This is a matter for •those who exercise that power. See :
I n r e W e lls 13 E . R . 92 ; T h e K i n g v . D a m s o n 90 Comm. L . R . 353. The
latter case deals with the question of the exercise o f judicial power and
actis which are incidental to the exercise of judicial power.
The Ceylon Constitution is one in which the
S e p a r a t io n o f P o w e r s .
doctrine of the separation of powers has been given effect to. The legis
lative, executive and judicial functions are placed in three departments
and they cannot trespass on the powers or activities of each other—
unless they are allowed to do so by legislation passed in the form and
manner required by the Constitution.
• I ' ,
The! doctrine of the separation of powers is part and parcel o f the

Constitution. This doctrine has been considered in America.— K i l b o u r n
v . T h o m p s o n 103 U . S. (S. C. R .) 377 ; M y e r s v . U n it e d S ta te s "272 U . S.
(S. C. R .) 52 (116) which deals with the power of removal being implicit in
the power of appointment— at p. 161 (110). In this case, on the question
o f the separation of powers all the Judges were in agreement. See
(177) (199) (235) (291) (240). S p r in g e r v . T h e G o v e r n m e n t o f th e P h i l i p
p i n e I s l a n d s 277 U . S. Reports 188; O r g a n ic A c t o f th e P h i l i p p i n e s o f
1 9 1 6 S e c . 1 2 ; S a w y e r v . Y o u n g s t o w n S te e l C o . 343 U. S. R . 579. (1166 ;
1168 ; 1172 ; 1179 ; 1181).
th is doctrine has also been dealt with in Australia. See :— 2 0 C o m m .
L. R . 5 4 '( 8 7 , 8 8 ); W a te r s id e F e d e r a tio n o f A u s tr a lia v. A le x a n d e r 25
C o m m . L a w R e p ; V ic to r ia S te e l R o llin g C o. v . D ig m a n — 46 C om m . L . R .
7 3 ( 1 3 0 ) ; Q u e e n v . K i r b y — T h e B o ile r m a k e r s C a s e 1 9 5 7 V o l . 2 A . E . R .
45 (5 1 E. 5 3 ).
In Ceylon this doctrine has been recognised from as far as 1833 so

far as this Court is concerned. See C h a r te r 1 8 3 3 . This Charter
was introduced as a result of Reports submitted by Messrs Golebrooke
and Cameron. See C olebrooJce C a m e r o n P a p e r s V o l. 1 . b y G . C .
M e n d i s a n d V o l. 2 p a g e s 1 2 5 , 3 5 0 and Communication by the Secretary
; o f State to the Governor, accompanying the Charter of 1833.
> jUnder the Donoughmore Constitution there were attempts to join.
the legislature and the executive but judicial functions were kept distinctly
. apart. Under the Soulbury Commission the doctrine of separation of
powers is recommended— S o u l b u r y C o m m is s i o n R e p o r t s — S e c . 3 9 5
a n d 396 a t p a g es 1 0 5 a n d 106.
The Ceylon Constitution Order-in-Council deals with separation of

•Governmental functions in-the Constitution— P a r t I I G o v e r n o r -G e n e r a l,
P a r t I I I L e g is la tu r e , P a r t V I J u d ic a t u r e . See : A g n e s N o n a ’ s C a s e ,
5 0 N . L . R . 1 0 6 ( 1 1 2 ) ; S en a d h eera ca se, 6 3 N . L . R . 3 1 3 ; Q u een V ic to r i a
M e m o r ia l H o s p ita l v . T h o rn to n , 8 7 C om m . L . R . 1 4 4 . .
The function of selecting Judges to hear a particular case is a function

that has been hitherto performed by the Judges— this function has now
been delegated to the Chief Justice. Therefore this function belongs
to that part o f the Constitution dealing with the Judicature and the
giving of that power, namely, the power to exercise what is a judicial
function to an administrative official is a violation of the Constitution.
Further, when the Constitution came into being, historically, the function
of selecting Judges was vested in the Judges themselves or in the Chief
Justice. I t is a judicial function and it cannot be conceived that the
framers of the Constitution had in mind that a Minister should be vested
with the right to select Judges. I t is submitted that this is an attempt
by the legislature to trench in or encroach into Part V I o f the Consti
tution.
I t is also a well known rule of interpretation that where a person is

vested with a power, he is necessarily invested also with all those subsi
diary and ancillary powers which would enable him to carry out the
primary power— C r a i e ’s S ta tu te L a w 5 th E d n . 2 3 9 .
The judicial power is vested in the Supreme Court or the Judges o f the
Supreme Court. Then all those ancillary powers necessary for the
performance of the primary function— the judicial function— are judicial
functions too. The question is what are those ancillary powers necessary
for the purpose of exercising the primary power. My submission is that
the power of appointment is ancillary to the exercise of the judicial power
and to vest it in the Munster would be a violation of the Constitution.
See : Q u e e n v . D a v i s o n 9 0 C o m m . L . R . 3 5 3 . The only way this could
be done is to first alter the Constitution by a two-third majority and
thereafter by passing necessary legislation— C o o p e r v . C o m m is s i o n e r o f
In com e T a x 4 C om m . L . R . p a g e 1304 at p . 1317.
The tests by which whether an ancillary function is a part of the judicial

power may be ascertained, are laid down in Q u e e n v . D a v i s o n and may
be usefully applied to the present case. The historical test as laid down
by Doan Roscoe Pound and the Holmes test as laid down by Holmes J .,
referred to. The answer to either of these tests if applied to the present
case would show that the power of nomination is essentially a function
of the court and cannot be reposed in the executive.
S e c tio n 9 .
The nomination is for some o f the Judges of the Supreme Court. One e
Judges are nominated the rest o f the Judges of the Supreme Court are
unable to hear the case— they are incapacitated from hearing the case.
The authority for hearing the case is the nomination under Sec. 9.
The appointment by the Governor-General under Sec. 52 (1) is not the
urce of the power to hear the case— it is derived from th e nomination
by the Minister.
.The Queen v. Liyanage and others 327
[T. S. F e e n a n d o , J.—When a Judge o f the Supreme Court is appointed

b y the Governor-General under Sec. 52 o f the Constitution he receives
the judicial p o w e r a n d if a law is enacted taking that judicial power
which is conferred by Sec. 52, then that is a violation o f Sec. 52..........
Therefore if .the Minister has been given a special power o f appointment,
it is a contravention o f the general power o f appointment under Sec. 52.]
That is the pith and substance of what I was trying to say.
On the question of separation of powers, in the American, Philippines
and Australian Constitutions there is a specific vesting of the legislative,
executive and judicial powers in the legislature, executive and the judica
ture respectively. There is no vesting of judicial power in the Supreme
Court because the Supreme Court was already in existence at the time of
the Constitution. The authorities are quite clear that once a Constitu
tion creates a separation of powers there need not be express words to
say that one branch or function o f Government cannot trench in on the
other. It can only be done by way of a proper amendment o f the
Constitution. See : M a r b u r y v . M a d i s o n 1 C r a n c h R e p o r t s 1 3 7 , 2 U . S .
{S . C . R.) 1 3 5 { L a w y e r s ’ E d i t i o n ) , M y e r s C a s e 2 7 2 U . S . R . { 1 3 8 - 1 4 0 ) {2 3 7 ) .
Once it is recognised that there is a separation, then it follows you

cannot exercise the powers of another department. See : S e n a d h ir a ’ s
C a s e , 6 3 N . L . R . 3 1 3 ; M a c a u l a y v . K i n g , 1 9 2 0 A . C . 6 9 1 ; A . G . N e w S o u th
W a l e s v . T r e th o w a n , 4 4 C o m m . L . R . 3 9 4 .
In regard to the question of the bona fides and mala fides of the Minister
in issuing the nomination and direction— Firstly, sec. 9 does not prevent
. this Court from going into this question— ‘ any court ’ does not refer to
.this court but to another court; the essential condition o f the exercise
o f judicial power by a particular court is to determine whether it has
jurisdiction to entertain the litigation and this can only be taken away
by express words. I f the effect of Sec. 9 is to bar this Court from going
into the question of jurisdiction, then it is an interference with the judi
cial power of this court. See : H a l s b u r y V o l . 9 {3 r d E d n .) p . 3 5 0 S e c . 8 2 2 ;
C h e s t e r B a t e s o n , 1 9 2 0 {1 ) K . B . 8 2 9 ; 1 2 2 .L . T . 6 8 4 ; T h e j a G u n a w a r d e n e ’ s
C a se, 5 6 N . L . R . 193.
'The question is whether the Minister in exercising his discretion in

issuing the direction and nomination has acted bona fide or mala fide.
See : 1 9 4 7 (2) S . A . L . R . 9 8 4 ; M a l y a l i v . T h e C o m m is s i o n e r o f P o lic e ,
1 9 5 0 A . I . R . B o m b a y , 2 0 2 {2 0 3 ) ; S u r i y a w a n s a v . C o m m is s i o n e r o f L o c a l
G o v e r n m e n t , ‘4 8 N . L . R . 4 3 3 {4 3 6 ) ; d e S m ith — J u d i c i a l R e v ie w o f
A d m in is tr a tiv e A c tio n , p a g e 2 2 9 ; D es p h a n d e v . T h e E m p e r o r , 1 9 4 5
A . I . R . N a g p u r 8.
A . H. C. de with S . A l l e s and K . C . K a m a la n a t h a n ,
S ilv a , Q .C .,
for the 2 0 tb and 21st Defendants.— When there is a direction under
section 440A of the Criminal Procedure Code, a Trial at Bar can be held
before the Supreme Court without a Jury and from that moment there
can be no interference with the course of that case except by law, provided
the law is good.
.There is no provision in the Courts Ordinance, the Criminal Procedure

•Code or in the Constitution, in the absence of any special legislation, for
a Minister to interfere with the selection of Judges. But for section 9
of the Criminal Law (Special Provisions) Act, No. 1 o f 1962, the Minister’s
power ends when the direction has been given. Section 9 places a bar,
and it is not possible for any Judge of the Supreme Court to hear that
case .till a nomination of Judges is made by the Minister.
The Governor-General appoints Judges of the Supreme Court under
section 52 (1 ) of the Ceylon Constitution Order-in-Council. When they
are thus appointed they are vested with judicial power u'hick continues
till they retire or till they are removed by an address o f both Houses
of Parliament. The Judges can then hear every case which comes before
the Supreme Court.
When a direction is given by the Minister, the authority given to
Judges of the Supreme Court on appointment under section 52 (1 ) of tho
Ceylon Constitution Order-in-Council to hear any case which comes
before the Supreme Court is taken away by section 9 of the Criminal Law
(Special Provisions) Act. Then, till the Minister makes an appointment
of Judges to hear this case, none of the Judges o f the Supreme Court
have the authority to hear it. In that sense, that nomination is an
appointment of Judges to hear that case.
The nomination by the Minister does not constitute a Bench o f the
Supreme Court. In view of the fact that section 440A of the Criminal
Procedure requires a Trial at Bar to take place before the Supreme Court,
this Court has no jurisdiction to hear a Trial at Bar. The nomination
by the Minister under section 9 of the Criminal Law (Special Provisions)
Act is u l t r a v i r e s of the Constitution. I f the power to nominate Judges
of the Supreme Court is to be given to a Minister, it must be done by
amending the Constitution.
with S . J . K a d ir g a m a r , E . A . G . d e S ilv a ,
G . G . P o n n a m b a la m , Q .C .:
Iza d een M oh am ad and H . D . T h a m b y a h , for the 22nd Defendant.
G . G . P o n n a m b a la m , Q .C ., with S ta n le y d e S o y z a , S . J . K a d i r g a m a r ,
E . A . G . d e S ilv a , N e v i l l e de. J a c o ly n , K . V ik n a r a ja h and 11. I l a y p e r u m a ,
for the 23rd Defendant.
G . G . P o n n a m b a la m , Q .C ., with S . J . K a d ir g a m a r , E . A . G . d e S ilv a
and C e c il d e S . W i je r a t n e , for the 24th Defendant.
D o u g l a s S t. C . B . J a n s z e , Q .C ., Attorney-General, with V . T e n n a k o o n ,
Deputy Solicitor-General, A n a n d a P e r e i r a , L . B . T . P r e m a r a t n e , T . A . d e
S . W i j e s u n d e r e , V . S . A . P u l l e n a y e g u m and N o e l T itt a w e lla , Crowm Counsel,
for the Prosecution.— The words “ Peace ” , “ Order ” and “ good Govern
ment ” in Article 29 (1) of the Ceylon Constitution are not w ords'of
limitation but are a compendious expression employed for conferring on
the Parliament of Ceylon the plenitude of legislative power. The Court
will not inquire of any enactment, whether it does in fact promote peace,
order or good government— vide R i e l v . T h e Q u e e n (1885) 10 Appeal Cases
675 and C h e n a r d a n d C o m p a n y v . J o a c h i m A r i s s o l (1949) A . C. 127 at
page 132.
The Queen v. Liyanage and others 329
The direction issued by the Minister of Justice under Section 8 of the

Criminal Law (Special Provisions) A ct, No. 1 o f 1962, and the nomination
made by the Minister of Justice under Section 9 of the same Act cannot; ■
if i n t r a v i r e s the Constitution, be called in question in any court as the
express words of the sections prohibit such a challenge even on the grounds
of mala fides— vide S m it h v . E a s t E l l o e M u r a l D i s t r i c t C o u n c i l ( 1 9 5 6 )
A p p e a l C ases 736.
There is no separation of powers in the Ceylon Constitution as found

in the Constitutions of the United States and of the Commonwealth of
Australia. The Constitution of Ceylon has been modelled on the Constitu
tion of the United Kingdom in which there is no such separation of
powers— vide paragraphs 40S to 410 of the Report o f the Commission
on Constitutional Reforms, CMND 6G77 of September 1945.
Articles 52 to 56 o f the Ceylon Constitution Order in Council which

are to be found in the Part headed ‘ ‘ The Judicature ” do not provide for
the establishment of a Judicature. Such provisions are to be found in the
Courts Ordinance (Cap. 6 ). Articles 52 to 56 are primarily concerned
with ensuring the independence of the Judiciary. The independence
of the Judiciary does not require that Judges should have the freedom
to decide w h ic h case they may hear but it requires that they should have
the freedom to decide a n y case which they may hear in any manner that
they think the law requires and justice demands.
The term “ judicial power ” is not used anywhere in the Ceylon Consti
tution. The concept of judicial power derived from the Constitution
of the United States and of the Commonwealth of Australia (where such
term is used) must therefore be used with caution. The concept of
judicial power derived from these Constitutions has been employed in
S e n a d h ir a v . T h e B r i b e r y C o m m is s i o n e r , (1961) 63 N . L . R . 313, to provide
a definition of the term Judicial Officer ” in the Ceylon Constitution.
A scrutiny of the cases on this topic would indicate that the term
“ judicial power ” is used, broadly speaking, in three senses, viz :
(i) the strict sense, i.e. “ the power which every sovereign must of
necessity have to decide controversies between its subjects or between
itself and its subjects, whether the rights relate to life, liberty or pro
perty — ” vide H u d d a r t P a r k e r & C o . P t y . L td . v . M o o r e h e a d (1909)
8 C. L. R. 330 at 357 ;
(ii) the power of judicial review ;
(iii) in a wide sense to include any power conferred upon a Judge : vide
A t t o r n e y -G e n e r a l o f G a m b ia v . N ’ J i e (1961) Appeal Cases, 617.
It is the first sense stated above that the term ‘ judicial power ’ bears
when it is used in a constitutional context.
I t is conceded, for the purposes of this case, that under the Constitution
of Ceylon judicial power in this sense must be exercised by Judges o f the
Supreme Court or Judicial Officers appointed by the Judicial Service
Commission. The power of nomination of Judges is clearly not an exer

cise of judicial power in this sense. A power incidental to the exercise
o f a judicial power is not a judicial power and such power may be vested
in the Executive.
The power of nomination exercised by the Chief Justice under section

51 of the Courts Ordinance (Cap. 6 ) is not an exercise of judicial power.
The Chief Justice does not have more judicial power than any of the
other Judges of the Supreme Court. He is only p r i m u s i n t e r p a r e s .
In constitutions such as those of the United States and the Common

wealth of Australia, where there is a rigid separation o f powers, the
union of judicial and non-judicial powers is not legitimate— vide A t t o r n e y -
G en era l o f A u s t r a l i a v . T h e Q u e e n (1957) Appeal Cases 288. (The Boiler
makers’ Case.) The so-called Holmes test and the method of historical
approach have been employed by the courts of these .countries to justify
the union of judicial powers with non-judicial powers which are incidental
to the exercise of judicial powers— vide P r e n t i s v . T h e A t l a n t i c C o a s t lin e
C o . (190S) 211, U . S. 210 and Q u e e n V i c t o r i a M e m o r i a l H o s p i t a l v .
T h o r n to n (1953) 87 C. L. R. 144 and T h e Q u e e n v . D a v i d s o n (1954) 90
C. L . R . 353 ; but in these cases it should be noted that the non-judicial
nature of such incidental powers has always been recognised. These
non-judicial powers, although incidental to the exercise of judicial power,
could therefore be validly vested in either the legislature or the executive.
Sinhala is an Official Language in the sense that its use is now authorised.
The absence of any sanction in the Official Language Act, No. 33 of 1956,
indicates that it was not intended to penalise the failure to use such
language. The Act must be construed in such a manner as to avoid
mischievous consequences. The expression “ before the expiry of the
31st day of December, 1960 ” is a counsel of perfection, vide T h e Q u e e n v .
J u s t ic e s o f C o u n t y o f L o n d o n a n d L o n d o n C o u n t y C o u n c il (1893) 2 <3. B .
478. The operative words are “ until the necessary change is effected ”
and no such change has so far been effected.
It is conceded by the defendants that English is the language of the

courts. That means that English is not only the language in which the
court speaks but also the language in which it must be spoken to. The
direction and the nomination are communications to the court and must,
therefore, be in English.
A statute cannot be disregarded merely because it may appear to a

court to offend against the principles of natural justice. W hat the legis
lature in its wisdom decrees must be obeyed by all, even by Judges.
0. in reply.— The Attorney-General based

G . P o n n a m b a la m , Q .C .,
his submissions mainly on the basis that there was no separation of
powers in Ceylon. A true appreciation of what is meant by the separation
of powers requires a knowledge of the background on which the entire
doctrine was based. From the time of- Blackstone onwards what is
emphasised as objectionable is not an overlapping of functions in the
The Queen v. Liyanage and ott ers 331
periphery of the different spheres of government, buf the concentration

of the powers of one body in another. A complete separation o f powers
even if theoretically possible would bring government to an end. W hat
is necessary is the prevention of tyranny. The doctrine has received its
main application in the securing of the independence of the courts—
Constitutional Law of Great Britain and The Commonwealth 2nd edit,
p. 15 by Hood Phillips; Blackstone’s Commentaries by Samuel Warren
p. 241. The Attorney-General has misdirected himself into thinking
that there was no separation o f powers in countries mainly influenced
by the British Constitution just because there was a certain amount of
overlapping in otherwise clearly discernible spheres of governmental
functions. Even in America it was found impossible to adhere to a strict
separation of powers. A significant feature of the Constitutions of
America, England and Ceylon was the practice o f committees of the
legislature conducting inquiries— hearing evidence etc. This is to enable
them to perform the legislative function effectively and it was therefore
an implied power of the legislature. See M a c G r a i n v . D a u g h e r ty at
p. 306 o f “ Leading Constitutional Decisions” by Robert E . Cushman,
10th edition ; Jennings: Law and the Constitution, p. 25, and Appendix,
p. 281.
There were the formal and material doctrines of the separation oi powers.
Under the former a function is considered to be judicial because it is
exercised by a judge. The Attorney-General could not point to a single
authority under a Constitution in a non-totalitarian country wherein a
member of the executive was considered an appropriate or competent
authority to constitute a bench.
Nomination is not an administrative act, as the Attorney-General

submitted, buta judicial function. Definitions are difficult, but something
that has become historically attached to judges as their proper
function becomes a judicial function. Nomination has become attached
to the function of judges collectively or otherwise and to remove it from
the ambit of the purview of the judges would be to interfere with the
independence of the judges and a violation o f the Constitution. The
constitution of the Court is part and parcel o f the judicial function.
The absence of the term “ vesting ” as regards legislative and judicial

power in Ceylon is understandable. Such a term would be necessary
only when written Constitutions are promulgated for new political
entities which did not exist previously. Prior to the Constitution, the
Legislature and the Supreme Court had existed in Ceylon for several
years. [Counsel examined the Constitutions of America, Australia,
Canada and Ceylon as regards the vesting of the legislative, executive
and judicial powers.]
In regard to the Attorney-General’s explanation of the judicial function

and judicial power, the judicial power o f the State is an enormous
composite of powers including all except executive and legislative power.
The whole of the judicial power becomes indefinable but it is vested in
find distributed through the judiciary. There is a distinction between

judicial.power of the State and judicial power of the judges, and between
judicial power in a unitary State and a federal State. La a qualitative
analysis of judicial power, the judicial power of the courts is equal to
the judicial power of the judges plus something else. See A t t o r n e y -
G e n e r a l o f G a m b ia C a s e (1961) 2 All E. R. 504 ; 60 C. L. W . 71.
Judges exercise judicial power not only when they hear disputes
between parties but also when exercising those powers properly appur
tenant to the functions of a judge. The constitution of a Court is part
and parcel of the judicial function. In Ceylon, the judiciary and its
functions and powers and independence had been well established. As
such those who framed the Constitution may have confined themselves,
in dealing with the judiciary, to the three pillars o f the temple of justice
which establish irrevocably the total independence of the’ judiciary. The
Constitution of Ceylon like the India Independence Act was a skeletal
Act. ' See (1 9 5 0 ) A . I . R . (A lla h a b a d ) 1 1 a t p . 1 4 . [In reply to the
Court, “ there isn’t a more truncated, more incomplete and mutilated
Constitution than the Constitution of Ceylon .” ]
There is no definition of-judicial power which is exhaustive. See

however:—
(1) K . v . D a v i s o n 90 Com. L. R . 368 and the commentary of Prof.

Sawyer on the case at p. 342 in 1954 Australian Law Journal,
Yol. 28.
(2) T h e R o l l a C a s e (1944) Vol. 69 Com. L . R. 185 at 199.
(3) (1 9 2 9 ) V o l . 4 2 C o m . L . 11. 5 1 5 .
(4) 2 1 1 V . S . 2 2 9 .
One test to decide whether an Act involves a judicial function is
to find out what and where the particular function was deposited
when the Constitution was passed. In the present case in which of
the three limbs had the power of nomination been vested in the
judiciary.
(5 ) Q u e e n V i c t o r i a M e m o r i a l H o s p i t a l v . T h o r n t o n (1953) 87 Com.
L . R . 144.
The definition of judicial power as “ the power vested in the courts to

administer justice according to law ” in 2 1 1 V . S . 1 2 2 is an admirable
definition.
The power of making procedural rules is an extreme example of

incidental judicial power. According to Dean Pound, it is the function
of the Courts to regulate proceedings.
Whatever leads to the final determination of disputes is part of the

judicial process and the constitution of the court is part of the judicial
process.
But for the Act N o. 1 of 1962, the Minister’s attempt to nominate the
Judges would have been a blatant case o f contejnpt o f court. See
“ Democratic Government and Politics ” by Prof. J. A . Corry 2nd Edit,
p. 245 (for an explanation o f what a court is).
. Counsel cited further cases on the nature of judicial power :—
(1) T h e S h e ll C o . o f A u s t r a l i a L t d . v. F e d e r a l C o m m is s i o n e r o f T a x a t i o n
1931 A . 0 . 275 at 297.
(a court has to be vested with the judicial power of the State. This
cannot be said, for example, of the Board of Review on Income Tax
which is therefore not a Court).
(2) A t t o r n e y G e n e r a l f o r A u s t r a l i a v . R e g i n a (The Boiler makers Case)

(1957) 2 A ll E .R . at 56.
(Difference between judicial powers and powers ancillary to judicial
powers examined.)
(3) A t t o r n e y G e n e r a l f o r O n ta r io v . A t t o r n e y G e n e r a l f o r C a n a d a , 1925
A . C. 750, 1925 L. J. (P. C.) 132.
(To assign judges to a particular court means to appoint. By

nomination in the instant case, the Minister appoints judges to a
particular case and thereby tampers with the judicial power o f the
State vested in the Supreme Court.)
R e x v. L o n g . 1923 S. A . L . R . 69.
(What constitutes a Court.)
K in g E m p ero r v. S a rm a 1945 Vol. 1— All E . R. 203.
Though a particular act may in isolation look like an administrative

power, yet by association with the judicial power it becomes part of
judicial power.
Q u een V ic to r ia M e m o r ia l H o s p ita l v. T h o r n to n 87 Com. L . R . 144 at 151.
It is not possible to isolate nomination in this case from the whole

complex of judicial process. The nomination of the Judges by the
Minister was an interference by the executive with what is fundamentally
part of judicial power.
E . G . W ik r a m a n a y a lc e , Q .C ., in reply.— The Constitution provides for

what might be called the “ autonomy ” o f the Supreme Court. The
Constitution is a skeletal one which has taken the institutions as they
existed at the time the Constitution was framed. The Supreme Court is
described not in the Constitution but in the Courts Ordinance. That is
why certain sections of the Courts Ordinance can only be amended by a
two-thirds majority— the test being anything which affects the indepen
dence of the judiciary and the continuity of the Supreme Court dealt
with in Section 52 of the Constitution Order in Council. Section 6 of the
Courts Ordinance is such a section.
2**---- a 0478 (12/02)
The autonomy of the Supreme Court means that m relation to matters

necessary for its functioning it must regulate itself. It is essential that
it should he kept free from any kind of outside interference amounting to
trespass on the independence of the judiciary. When the autonomy of
the Supreme Court which regulates itself is interfered with by a person
who has a personal interest in the matter or otherwise, that is an inter
ference with the independence of the judiciary. When a Minister,
whether he is interested 01 not in a particular case, presumes to select
judges whom he likes the autonomy ceases and the independence is put in
doubt.
The history o f this country has shown that the judges of the Supreme
Court have been and are independent. It is the common knowledge
of those who practise in the courts to hear a litigant say- that he wishes
such and such a judge would hear a case or not hear it, depending on what
he rightly or wrongly guesses would be the judge’s reaction. For a
Minister therefore, in a case like this, to pick and choose judges would
tend to shake the confidence one should have in the judges o f the
Supreme Court. Justice must not only be done but must also seem to be
done.
•In interpreting a Constitution so truncated as ours one ought also to
look into the minds of the Soulbury commissioners who framed it. Their
report shows that they sought to prevent, in every way, the interference
with the independence of the judiciary.
As regards the direction having to be in Sinhala, the Official Language
Act of 1956 leaves no doubt as to the legislature’s intention. Even the
proviso in section 2 which makes certain concessions for the transitory
period uses the terms “ immediately ” , “ as early as possible ” and the
final and most important phrase “ before the expiry of the thirty-first
day of December, 1960.” All this language and these phrases and the
definite date cannot be dismissed as mere “ counsel of perfection ” . All
the words in a statute must be given effect to. The legislature is deemed
not to waste its words or to say anything in vain. See Q u e b e c R a i l w a y ,
L i g h t , H e a t a n d P o w e r C o . L td . v . V a n d r y A . I. R. 1920 P. C. 181 at 186 ;
B a r o d a K a n t a v . S h a i k M a i j u d d i A . I. R . 1925 Cal. 1 at p. 3 ; T h e Q u e e n v.
T h e B i s h o p o f O x f o r d (1879) 4 Q. B. D . 245 at 261 ; R e g i n a v . T h e J u s t i c e s
o f th e C o u n t y o f L o n d o n a n d L o n d o n C o u n t y C o u n c i l 69 L. T. 682
{Distinguished).
It is no argument to say that if the courts hold that all official acts
not in Sinhala are void, it would lead to serious consequences and that
the legislature must not be held to intend absurd results. There is
nothing absurd about having officipl acts in Sinhala. I f the precise words
of a statute are plain and unambiguous, they must be construed in the
ordinary sense even though it leads to an absurdity. It is only when
there is real doubt and two interpretations are possible without straining
the language, that the more reasonable and sensible interpretation would
be preferred. W e cannot disregard what appears to be the plain meaning
of the English language even if in a particular case it does appear to
produce an inequitable result. “ Where the language.is explicit, its'

consequences are for Parliament, and not for. the Courts, to consider.- In
such a case the suffering citizen must appeal for relief to the law giver
and hot to the lawyer.” — Craies : “ Statute Law ” 5th ed., pp. 82, 85. •
A Minister therefore must, by the Official Language Act, use Sinhala
in all his communications after 31st December, 1960. The direction and
the nomination bad to be communicated in writing. They could not have
been done orallj, and they had to be in the official language. He could
send an English translation also, but that is a different matter. The
direotion and nomination therefore are invalid and have no existence in
law.
H . W . J a y e w a r d e n e , Q .O ., in reply.—
Sec. 9 is an attempt by the legislature to make an inroad into
that part of the Constitution which provides for the independence
o f the judiciary, namely Sec. 52 of the Order-in-Council. See Sections
52 and 91 o f Order-in-Council. The independence o f the Judges is
preserved in England by the Act o f Settlement. The Russian Constitu
tion declares the independence of the Judges by Act 112 of the Constitu-
.tion. See V o l. 3 P e a s l e y : C o n s titu tio n s o f N a t i o n s p . 4 9 7 . This legislation
renders sec. 52 meaningless and inoperative. Even legislation to amend
the Courts Ordinance by doing away with the Chief Justice, PuiBne
Judges, Commissioner of Assize and the Supreme Court cannot be passed
as it would be repugnant to Sec. 52 of the Constitution. This can only
be done by amending the Constitution. See: M a r b u r y v . M a d i s o n
2 U . S . (S . C . R . ) 1 3 8 ; C o o p e r v . C o m m is s i o n e r o f I n c o m e T a x 4 C o m m .
R ep. 1 3 2 4 ; The
K o d d k a n P i U a i v. M u d a n a y a J ce 5 4 N . L . R . a t 4 3 8 .
appointment under Sec. 52 by the Governor-General secures the indepen
dence of the Judges. Nothing can come in between the appointment
o f the judge and the time he delivers bis judgment. His sole source of
authority is the appointment. The effect of See. 9 is that it creates an
obstacle between the appointment and the final judgment: namely, in
the nomination. For without the nomination, the Judges in spite of
their appointment under Sec. 52 cannot hear this case. Thus, the
nomination under Sec. 9 is the appointment and is contrary to tho
Constitution.
Nomination means in effect “ appointment ” . The nomination is the
appointment of the Judges to hear this case. It has no special signi
ficance. The legislature is attempting to do indirectly what it cannot
do directly. This is so even in its attempt to constitute this court as
the Supreme Court. This is a mockery of the Constitution. Its effect
is to derogate from the power of the Supreme Court. See : Y o u n g v .
B r i s t o l E u r o p e a n A i r w a y s C o . L td . 1 9 4 4 ( 2 ) A . E . R . p a g e 2 9 3 .
T h e q u e s tio n o f n o m i n a t i o n b y th e C h i e f J u s t i c e a n d th e M i n i s t e r .
When the Minister makes a nomination it is an administrative act.

He is answerable to Parliament. I f so, Judges can be discussed in
Parliament. The independence of the judiciary will cease to exist,
336 The .Queen v. Inyanage and others
That is why the Order-in-Council states that Judges will be appointed

by the Governor-General, whose acts cannot be questioned in Parliament.
S ee: A t t o r n e y G e n e r a l, O n ta r io v . A t t o r n e y G e n e r a l, C a n a d a 1 9 2 5 L . J .
P r i v y C o u n c il p. 1 3 2 ; S c h r ie r v . B e r n s t e i n & L a b o u r S td — 1 9 6 2 3 3 D o m i
n io n L . R . p a g e 305.
I f the power of selecting Judges is left to the Chief Justice and the
other Judges no one can question their acts. It is a matter withiD their
sole discretion. Further, when a Bench is constituted by the Chief
Justice, the other Judges are not deprived of their rights to hear a case.
Each is entitled to hear a case though for convenience they make their
own arrangements. Assuming that this power o f selecting Judges is
administrative, it is one which is vested in the Judges as a body.
The power to appoint carries with it the power to revoke ; this is

implicit in the power to appoint. The Attorney-General contends that
Sec. 18 of the Interpretation Ordinance does not apply. The word
“ order ” in the Section would apply to a nomination which is in effect
an order by the Minister.
As to meaning of “ court” see H a l s b u r y V o l. 9 S im o n d s E d n . p a g e

3 4 2 — S ec. S09.
As to what is meant by constituting a court— See R e x v. L ong

1923 A . D .
The Attorney-General contends that there is

S e p a r a tio n o f P o w e r s .
no separation of powers in Ceylon. One does not find the separation
of powers in any particular form in the Constitutions of various
countries— the difference lies in the degree of the separation of powers.
For instance, in the British Constitution the separation between
the executive and the legislature is not as marked as the separation of
the judiciary on the one hand and the executive and the legislature
on the other. In America, the separation between the executive and
the legislature is more marked.
In every Constitution that has followed the British pattern the judi
ciary is always distinct from the executive and the legislature. See :
H a l s b u r y V o l. 7 p a g e 2 S 7 (1 9 1 ) ; L a w a n d O rd ers— A l l e n 2 n d E d n p a g e 1 ;
C o m m itte e o n M i n i s t e r s ' P o w e r s (1 9 3 0 ) R e p o r t (that judiciary is distinct).
Even in America where the separation of powers is more marked than

in any other constitution, in practice it is not applied with all its rigour—
H a m p t o n efc C o . L t d . v . U n it e d S ta te s 2 7 6 U . S . R e p o r ts 3 9 4 .
In Ceylon there is a clear separation of powers. Apart from autho

rities already cited, see P r o v i n c i a l A d m i n i s t r a t i o n R e p o r t 1 9 5 4 — C l . 4 .
For my purposes it is sufficient to argue that the judicial power is vested
in a separate and distinct department consisting of the Supreme Court
and the minor Judiciary.
For separation of powers in Canada, see L a b o u r R e l a t i o n s B o a r d o f

S a s k e tc h w a n v . J o h n E a s t I r o n W o r k s 1 9 4 9 A . C . 1 3 4 .
The Queen v. Liycmage and others 337
For separation of powers in Australia, see the B o i l e r m a k e r s C a s e 1 9 5 7

(2 )A . E . R . 4 5 (P. C . ) .
In regard to the nature of the power of constituting a Bench: is it

, ah incident to the judicial power and therefore a part' of the judicial
power or is it a purely administrative act ? Judicial power itself is the
power to determine the existence or non-existence o f pre-existing legal
rights. ; It enforces pre-existing legal rights as between the parties to
the 'dispute. This is the judicial power of a court. In the case o f a
Labour, Tribunal or similar Tribunals, it determines the future terms
o f employment between master and servant. It creates new terms. ■
It does riot seek to enforce pre-existing rights which is the judicial power
pure and simple— H u d d a r t P a r k e r & C o . L td . v. M o o r e h e a d — 8 C o m m .
L . R e p . 3 3 0 , p e r Griffiths C. J. Now in order to determine whether a
particular function is part o f the judicial power or not one has to apply
certain tests, as already submitted. One of the tests is that you must
look at the ultimate end to be achieved ; then all those acts which are
incidental to the achievement of the ultimate end belongs to that function
o f Government, executive, legislative or judicial, as the case may be.
I f the ultimate end is the judicial function, namely, the enforcement
o f pre-existing rights between the parties, then all those ancillary func-
tioris that lead up to the final judgment are part and parcel of the judicial
function and come under the category of judicial power. On the other
. hand, if the final decision would lead up to a purely administrative
decision, all those earlier acts belong to the category o f executive power.
This is, what may be termed as the “ Holmes test ” or doctrine. See :
Be* v . |D a v i s o n 9 0 C o m m . L . R . 3 5 3 (3 6 6 ) (3 6 7 ) ; B e t a C o . v . T h e
C o m m o n w e a lth 6 9 C o m m . L . R . 1 8 5 (1 9 9 ) ( 2 0 3 ) ; T h e K in g v. F ed eral
C o u rt o f B a n k r u p tc y E x p . L o w e r s te in 5 9 C om m . L . R . 5 5 6 ( 5 8 1 ) ; A le x
a n d e r ’ s C a s e 2 5 C o m m . L . R . 4 3 4 (4 4 7 ) ( 4 6 8 ) ; R e x v. K i r b y — B o ile r m a k e r s
C a s e .1 9 5 7 (2 ) A . E . R . 4 5 .
It is submitted that the power to appoint a Judge or to nominate a

Judge is a part of the judicial power enacted in Sec. 52 of the Order-in-
Council and is a part of the judicial power since it must necessarily lead
to a final decision in this case. It cannot be taken out of the judicial
power.
Further, every court based on the British system has got a residue
o f power by which it can do things which are necessary to enable the
courts to arrive at a final decision. See H v jc u m C h a n d B o y d v . K a m a l -
a n a n d S in g h 3 3 1 . L . R . 9 2 7 (9 3 0 ) .
Another test is the historical test— in the interpretation of constitutions,

one looks at the date on which the Constitution came into force. I f
certain acts were done as part and parcel of one particular organ of the
State at that date, then you regard that type of function as belonging
to that organ of State. It may be an administrative act, but if it was
traditionally done as part and parcel of the judicial function of the State,
then it should be regarded as belonging to that organ of State. This
338 The Queen v. Liyanagc and others
approach is also called the Dean Pound doctrine, being first enunciated
by Dean Roscoe Pound. For. the “ Holmes Test ” see judgment of
Justice Holmes in P r e n t i s v . ’ A t l a n t i c C o a s t L i n e C o . 2 1 1 U . S . R . 2 1 0 .
The “ Historical Test ” was applied in L a b o u r R e la t io n s B o a r d o f
S a s k e tc h w a n v . J o h n E a s t I r o n W o r k s 1 9 4 9 A . C . 1 3 4 ( 1 4 9 - 1 5 3 ) .
A t the time the Constitution was promulgated in 1946 the function of

constituting a Bench or nomination of Judges resided in the Judiciary—
it was a judicial function. It could never have been intended that when
the Queen gave this country its constitution she would have intended
that the legislature could take out this function of the court which is
necessary for the purpose of giving a final decision and rest it in the
executive. See R e x v . K i r b y — B o ile r m a k e r s C a s e 1 9 5 7 ( 2 ) A . E . R . 4 5
(P.c.). - '
In regard to the responsibility of the Minister to Parliament, see S ta n d

in g O r d e r s o f th e H o u s e o f R e p r e s e n ta tiv e s , O r d e r 3 1 , 3 6 ( 7 ) , 1 3 9 . E rs k in e
M a y — P a r lia m e n ta r y P ro ced u re 3 3 6 (337) (374) (3 7 5 ) ( 2 9 8 ) .Questions
reflecting on the conduct or character o f a person in official .capacity
. cannot be asked in Parliament but a question directed at the Minister with
regard to the reason or circumstances for making a certain, appointment
or nomination does not refer to the character or conduct of the Minister
at all. See also : H a l s b u r y V o l. 2 8 p . 3 0 0 S e c t i o n 4 4 6 ; O r d e r - in -C o u n c il
S e c tio n 4 6 ( 1 ) ; H a l s b u r y V o l. 7 p . 2 3 3 ; 3 5 9 ; P a r l i a m e n t — J e n n i n g s
2 n d E d n . p . 9 9 ; G o v e r n m e n t a n d P a r lia m e n t — S i r H e r b e r t M o r r i s o n p . 2 5 6 .
The other question is the application of the principle that justice must
not only be done but should manifestly and undoubtedly be seen to be
done. See : T h e K i n g v . E d w in 4 8 N . L . R . 2 1 1 ; S e r g e a n t v . D a l e 1 8 7 7 (2 )
Q. B . 558 ; 3 7 L . T . 156.
However much one might be assured that Judges are independent

there is the fear lurking in the minds o f the defendants that for some
reason or other unknown to themselves and best knovrj to the Minister
and the Government, the Government has vested itself with the power
to select Judges. This fact alone would indicate that the independence
of the Supreme Court is sought to be attacked. The question is whether
the defendants should so feel since for some reason or other the normal
practice of the constitution of the Court has not been followed.
Further, there are facts which indicate that the Minister himself partici
pated in the investigations. I f so, a party would be Judge in his own
cause by selecting Judges of his own choice. See E c k l e s v . M e r s e y \D ock
a n d H a r b o u r B o a r d — 7 1 L . T . 3 0 8 (3 1 0 . 3 1 1 ) ; 1 8 9 4 ( 2 ) Q . B . D . 6 6 7 .
Later cases apply the test of the reasonable m an: whether in a litigation
between A and B , A has the power of selecting the Judges while B has
no say in the matter. A reasonable man should say that there is bias
as a result of such power being vested in A. This is the position in this
case. This power vested in the Minister affects the entire independence
and integrity of the Court and is likely to create a suspicion in the minds
of the public.
The Queen ®. Liyanage and others 339
[T. S. Feelkando, J.— And more so in. the minds of the defendants.]
See: R ex. v. S u ssex T ru stees— 1 9 2 4 (1 ) Q. B. D. 256 (258);

I f the effect
B e x . v . C a m b o u m e J u s tic e s — 1 9 5 4 (2 ) A . E . B . 8 5 2 (8 5 5 ).
o f the legislation and the nomination is that justice does not appear to be
done then it-is regarded as a disqualification of the particular judges
because1it prevents the judges from acting judicially, i.e., the Supreme
Court cannot act judicially and that is a negation of the only purpose
for which the Supreme Court has been created. -If the legislation is such
that it makes the Supreme Court unable to act, then the legislation to
that extent is bad. " Judicial power ” in itself implies the right to
exercise the power, unbiassed, i.e., without even a likelihood o f bias
existing.
. i■
As to “ substantive motion ” and Questions in Parliament, see
I n t r o d u c t i o n to H o u s e o f C o m m o n s b y L o r d C a m p i o n p s . 1 1 0 (1 1 7 ) (1 7 0 ) .
M a y — P a r lia m e n ta r y P roced u re p . 336 ite m 6, p . 201 d is q u a lific a tio n
of m em b ersh ip ; M in is te r ia l r e s p o n s ib il it y . Q u e s tio n s in th e H ou se—
P a t r i c k H o w a r th p . 1 1 2 , 1 1 9 . S ta n d in g O r d e r s o f th e S e n a te — r e r e s p o n s i
b ility o f M in is te r . Also : T e r r e l v . T h e C o lo n ia l S e c r e ta r y 1 9 5 3 (2 ) A . E . B .
419 a t 494.
A . H . C . d e S i l v a , Q .G ., in reply.— The Supreme Court is a separate

entity. It would appear from section 52 of the Constitution Order in
Council (i) that there is one Supreme Court, and (ii) that the provisions
of this section clearly indicate that there ought to be no interference
by any outsider with the Supreme Court. These provisions seem to
ensure that the Supreme Court is an autonomous unit. Its functions
have tO|be regulated by itself. The Supreme Court can function only
through its members. It is clear from the Courts Ordinance that, if
there, is (one person who has a right to constitute a Bench of the Supnme
Court or to nominate the Judges, it is the Chief Justice. Generally the
Bench is constituted by arrangement among the Judges themselves.
■ ' ■: l
Nomination is a function of the Supreme Court. Where the Consti-
* tution intends that nomination should be the function of the Court
and that the Court should be an autonomous body, then, if nomination
is given to an outsider, the Court is not constituted in the way the Consti
tution requires it to be constituted. The Court so constituted is not
the Supreme Court.
In regard to the question of bias, not only actual bias but also the
likelihood of bias must be considered. See C o ttle v . C o ttle (1939)
2 A ll E . R . 535 at 540 ; R e x v . E s s e x J u s t i c e s (1927 ) 2 K . B. 475 ; B o d e v .
B a w a 1 N . L . R. 373 ; K i n g v . P o d i s i n g h o -16 N . L. R . 16 at 17 ; D i n g i r i
M a h a t m a y a v . M u d i y a n s e 24 N . L. R . 377 ; K i n g v . C a ld e r a 11 C. L. W . 1 ;
K a n d a s w a m y v . S u b r a m a n ia m 63 N. L. R. 574.
C u r . a d v . v u lt.
340 O R D E R OF COURT— The Queen v. Liyanage and others
ORDER
October 3, 1962.
On the twenty-third of June, 1962, the Minister of Justice, purporting

to act under section 440A of the Criminal Procedure Code as amended by
section 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962,
by filing document “ A ” 1 in the Registry of this Court, informed the
Court that he directs that the trial of twenty-four persons named therein
in respect of three specified offences all falling under Chapter V I of the
Penal Code be held before the Supreme Court at Bar by three Judges
without a jury. Later that same day the Attorney-General exhibited
to the Court an Information— document “ B ” 2— informing the Court
that the same twenty-four persons had committed the offences which
had been specified therein and seeking the issue by the Court of lawful
process against the said persons. Thereafter, the Minister of Justice,
again on the same day, purporting to act. under section 9 of the Criminal
Law (Special Provisions) Act, N o. 1 of 1962, filed in the Court document
“ C ” 3 nominating us as the three Judges who shall preside over the trial
of the persons referred to above to be held in pursuance of the direction
contained in document “ A ” .
*
• Acting upon the said direction and nomination we ordered summons
to issue on the twenty-four persons named in the afore-mentioned
documents. On 30th July 1962 all the defendants being present and
represented by counsel, we called upon the defendants to make their
pleas in answer to the charges contained in the Information. Counsel
then raised certain preliminary objections to the trial proceeding before
us, and it becomes necessary to set out hereunder the objections as
formulated by counsel.
Mr. Ponnambalam who appeared for seventeen of the twenty-four-

defendants framed his objections in the following form :—
•
“ This Court cannot take cognizance of the Information laid against

the defendants, and it has no jurisdiction to try the case because it
is not a validly or properly or lawfully constituted court; por is it
competent to hold a Trial-at-Bar ” .
Mr. Wikramanayake who appeared for two of the other seven defen
dants objected on the ground that “ the nomination of judges is contrary
to law and that the Court has no jurisdiction ” . He raised an additional
objection which was split up by him as follows :— “ (a ) The direction
by the Minister is null and void ; and (6 ) The nomination of the Judges
by the Minister is null and void
1 See page 361 (infra). > 5 See page 363 (infra).

* See page 364 (infra).
O R D E R O F CO U RT— The Queen v. Liyanage and others 341
Counsel for the remaining five defendants, except counsel for the
19th defendant, did not raise any separate objections themselves but
indicated that they would he supporting the objection raised by
Mr. Ponnambalam. Counsel for the 19th defendant informed Court
that he would formulate his objections as follow s:—
“ (a ) The constitution of this court is contrary to law, and therefore

the court has no jurisdiction to try the case ;
(6 ) In any event, the direction under section 440a of the Criminal

Procedure Code and the nomination under section 9 of the
Criminal Law (Special Provisions) Act are bad in law. ”
He;further moved for summons on certain persons whose testimony,

he stated, would be required to establish an allegation of m a la fi d e s on
the part of the Minister of Justice in issuing the direction and making
the nomination of Judges proof of which was necessary to maintain his
objections. W e intimated to counsel for the 19th defendant that we
would consider the . question of ordering summons to issue if he could
satisfy us that' the evidence he contemplated obtaining was relevant
and admissible.
O f these several objections, it seems to us that the additional objection

raised by Mr. Wikramanayake requires first consideration as the sustain
ing of that objection would have the result of terminating the present
proceedings. The substance of this additional objection that (a ) the
direction and (6 ) the nomination made by the Minister are null and
void was based on an interpretation he sought to place' on section 2
of the Official Language A ct, No. 33 of 1956, read with the Language
o f the Courts Act, No. 3 of 1961. He contended that, as a result of the
enactment of the Official Language Act, the Sinhala language has on
and after the 1st day of January 1961 become the only official language
o f Ceylon, and that the direction and nomination made by the Minister,
being official acts of an official, were required to be done in the Sinhala
language. The Language of the Courts A ct is designed to provide for
the use of the Sinhala language for recording the proceedings and for
pleadings filed of record. No Order as contemplated in section 2 , of
that Act has hitherto been made in respect of any of the Courts and
English still continues as the language of the Courts. The direction and
nomination of the Judges by the Minister,- not being acts constituting
proceedings in court nor forming pleadings filed of record, so Mr. Wikrama
nayake argued, could only have been validly done in the Sinhala language.
While he conceded that English was still the language of the Courts and,
therefore, that the communication to Court of the direction and the
nomination could have been validly done in English, he contended that
communication can take place only after the performance of the acts
and that there is an admission that the direction and nomination had
been effected only in the English language..
342 O R D E R O F COURT— The Queen u. Liyanage and others
A ct N o. 33 of 1956 is intituled “ A n Act to prescribe the Sinhala '

language as the one official language of Ceylon and to enable certain
transitory provisions to be made. ” Section 2 of the Act enacts :— i
“ The Sinhala language shall be the one official language of Ceylon :
Provided that where the Minister considers it impracticable to

commence the use of only the Sinhala language for any official purpose
immediately on the coming into force of. this A ct, the language or
languages hitherto used for that purpose may be continued to be so
used until the necessary change is effected as early as possible before
the expiry of the thirty-first day of December, 1960, and, if such
change cannot be effected by administrative order, regulations may
be made under this Act to effect such change.”
This Act became law on 7th July 1956, and on that same day the
appropriate Minister published a notification in the G azette .— (see G o v e r n
m e n t G a z e tte E x t r a o r d i n a r y , No. 10,949 of 7th July 1956)— in the following
term s:—
“ B y virtue of the powers vested in me by the proviso to section 2

o f the Official Language Act No. 33 o f 1956,1, Solomon W est Bidgeway
Dias Bandaranaike, Prime Minister, being the Minister in charge of
the subject of the said Act, do hereby declare that where any language
or languages has or have hitherto been used for any official purpose,
such language or languages may be continued to be so used until the
necessary change is effected in accordance with the provisions of the
aforesaid section. ”
I t is common ground that no regulations have been made as permitted

by this Act, and Mr. Wikramanayake contended that, as the time limit
permitted by the proviso has now passed, the proviso itself has now-
ceased to have any force. H e argued that the transitory provisions
themselves must cease on the expiry of the thirty-first day of December
1960 and the use of the language prescribed by section 2 as the one
official language which meant the only official language must prevail
over the use of any other language.
I t may be mentioned here that Mr. Wikramanayake did not contend

that section 2 warranted the proposition that Sinhala became on and
after 1st January 1961 the only language in which the acts of all the
functions of Government in this country could have been or can be
performed. He was content for the purpose of this case to argue that
it was the intention of the legislature to confine the operation of section 2
to official acts in the sense of acts o f officials as distinguished from acts
of the legislature or acts done in court proceedings. The learned
Attorney-General himself submitted that the expression “ official ” in
section 2 signified no more than authorised fdr official use, but he relied
on the absence of any provision in A ct No. 33 of 1956 in respect of the
consequences of a failure to use the Sinhala language as tbe only official
ORDER OF CO U RT— The Queen v. Liyanage and oilier* 343
language as indicative of the intention of the legislature deliberately

to refrain from providing any sanction in the event of such a failure.
H e submitted, further, that the legislature recognised that the change
could not be effected immediately and that a period of transition was
necessary, but that no limit was placed by the Act on the duration of
the period of transition. He was compelled to advance the argument
that the effect of the proviso was to retain the period of transition until
a change is in fact effected.
Relying upon certain observations contained in the judgment of

Bowen L .J. in T h e Q u e e n v . J u s t i c e s o f C o u n t y o f L o n d o n a n d Londo'tt,
C o u n t y C o u n c i l x, he submitted that the expression “ Before the expiry
of the thirty-first day of December 1960 ” is nothing more than a counsel
of perfection involving no consequences if the counsel is not heeded,
and that the proviso in effect permitted the Minister to ensure that the
language or languages used up to the date of the enactment of Act No. 33
of 1956 may be continued to be so used until the necessary change is
effected, although the intention and direction of the legislature was
that it be effected as early as possible. He argued that the Act must
be read, as all enactments are, subject to their not being made ab$urd
by matters which never could have been within the calculation or
consideration of the legislature, and that if two possible interpretations
. can be placed of which one is likely to bring about a mischievous result
while the other is conducive to peace, order and good government, the
court must lean towards the latter interpretation.
It appears to us unnecessary to pronounce on the merits of these

respective contentions. Even if one were to assume the correctness of
Mr. Wikramanayake’s contention that on and after 1st January 1961
official acts of officials could have been or can be performed only iD the
Sinhala language, as English is still admittedly the language of the
Court, the communication by the Minister to the Court by documents
made out in English of the direction and nomination of Judges by him
is, in our opinion, a sufficient compliance with the existing law. W e
are therefore unable to sustain the additional objection and, accordingly,
overrule it.
W e can now turn our attention to the main objections which have
been already specified. Although stated in varying forms by the several
counsel for the defendants they raise in substance the unconstitutionality
of certain provisions of the Criminal Law (Special Provisions) A ct, and
arc designed to obtain from this Corn-t a declaration that Sections 8 and 9
of that Act which relate to the powers of the Minister of Justice to issue
respectively a direction that persons accused of certain offences be tried
before the Supreme Court at Bar by three Judges without a jury and
to nominate those three Judges are u ltr a v i r e s the powers of the Legislature
as granted by the Ceylon (Constitution) Order in Council, 1946. It will
be convenient to deal with the alleged invalidity of the power to issue
1 L . S . (1893) 2 Q. B . at 491.
344 O R D E R O F COURT— The Queen v. Liyanage and others
a direction separately from the alleged invalidity of the power to

nominate as the relevant considerations applicable appear to ns to differ
materially in the two cases.
First, as to the direction. Section 8 of the Criminal Law (Special

Provisions) Act provides as follow s:—
“ Any direction issued by the Minister of Justice under Section 440a

, of the Criminal Procedure Code shall be final and conclusive, and
shall not be called in question in any Court, whether by way of W rit
or otherwise. ”
This objection to the power of the Minister conferred on him by Section

440a o f the Criminal Procedure Code (as now amended by Section 4 of
Act N o. 1 of 1962) to direct that these defendants be tried before the
Supreme Court at Bar by three Judges, although outlined by counsel
for all the defendants, was finally persisted in only by Mr. Ponnambalam.
He pointed to the history of Section 440a , and explained that while the
Code always contained provision— Section 216— whereby the Chief
Justice may in his discretion order that any trial before the Supreme
Court be a Trial at Bar by jury before three Judges, it was only after
the religious riots of 1915 that the Legislature introduced provision
for Trial at Bar without a jury, and that until the introduction of the 1946
Constitution the power to direct such a Trial at Bar rested with the
Governor. The reason for the introduction into our law of the system
of trial without jury in cases which up to that time had been triable
by jury was understandable as the chances of ensuring an unbiassed
jury at times when public feeling is profoundly disturbed, whatever be
the cause, are considerably lessened. Mr. Ponnambalam was inclined
to question whether the Governor himself could have been granted
that power, but it seems to us quite unnecessary to go into that question
here. He certainly argued that the substitution of the Minister of
Justice in place of the Governor in 1947 was not competent. This
argument is, in our opinion, sufficiently repulsed by a reference to
Section 88 of the Constitution Order in Council, 1946, itself, which
embodied the following transitory provisions relating to the modification
of existing laws :—
8 8 .— “ (1) ” The Governor may by Proclamation at any time before

the first meeting of the House of Representatives under this Order
make such provision as appears to him necessary or expedient, in
consequence of the provisions of this Order, for modifying, adding to,
• or adapting the provisions of any written law which refer in whatever
terms to the Governor, the State Council, the Board of Ministers, the
Officers of State, a Minister, an Executive Committee or a public
officer, or otherwise for bringing the provisions of any written law
into accord with the provisions of this Order or for giving effect thereto.
— (2) Every Proclamation under “ subsection (1) of this section shall
have the force of law and may be amended, added to or revoked by
further Proclamation within the period specified in that subsection.”
ORDER OF COU RT— The Queen v. Liyanage and others 345
Acting under Section 8 8 the Governor by Proclamation of 18th Septem

ber 1947 published in Government Gazette Extraordinary No. 9773 of
September 24, 1947 directed the substitution for the word “ Governor ”
in Section 440 a of the words “ Minister of Justice ” . It would be wholly
unprofitable to attempt to assess, as Mr. Ponnambalam invited us to do,
whether the Minister of Justice could have been so substituted for the
Governor because the paramount law, the Constitution itself, empowered
the Governor to modify, add or adapt the provisions of any law “ a s
a p p e a r s to h i m n e c e s s a r y o r e x p e d ie n t . ” In view of the consistent inter
pretation language such as this has received in recent times in Courts
of the highest authority, it is now too late in the day to argue that,
when the Legislature confers power on an individual by employing
expressions such as “ as appear to (the designated individual) necessary ”
or “ as (the designated individual) considers sufficient ” , that is not enough
warrant to constitute such designated individual the sole judge of what
is necessary or sufficient. See, for instance, the Privy Council decision in
B o s s - C l u n i s v . P a p a d o p o u llo s x. Nor do we think that by itself the fact
that we have assembled to hear this case in pursuance of the direction
made by the Minister has the effect of constituting us a special Court or
Tribunal and not the Supreme Court. W e need only refer to the admit
tedly sole previous instance after the introduction o f the 1946 Constitution
of a Trial at Bar held before the Supreme Court by three Judges without
a jury, viz. T h e Q u e e n v . T h e j a G u n a w a r d e n e s, where the Court stated
that “ the circumstance that the Minister purported to direct that an
Information shall be tried before the Supreme Court at Bar by three
judges without a jury does not, in our opinion, have the effect that a
Bench of three judges which assembles to hear the Information ceases
to be the Supreme Court and becomes a different tribunal created by
the Minister. ”
Another argument for invalidating Section 8 (an argument which

extended in respect o f Section 9 as well) advanced by Mr. Ponnambalam
was based on the contention that the Legislature of this country not
being sovereign it was competent to a Court to examine legislation to
decide whether it was actually for the peace, order, and good government
of the country, and, if it was not, to pronounce it void. Section 29 (1 )
of the Order in Council provides that “ subject to the provisions of this
Order, Parliament shall have the power to make laws for the peace,
order, and good government of the Island. ” Such a power has been
held “ to authorise the utmost discretion of enactment for the attain
ment of the objects pointed to ” , and a Court will not inquire whether
any particular enactment of this character does in fact promote the
peace, order or good government of the Colony— see C h e n a r d a n d C o . v .
J o a c h i m A r i s s o l 3. Mr. Ponnambalam sought to read Section 29 (1) as
a limiting clause whereas it appears to us clearly as an empowering
clause. Cases decided in Ceylon or other countries of the British
Commonwealth at a time when the Colonial Laws Validity Act applied
1 L. It. (1958) A . C. at 559. . * (1954) 56 N . L. R. 193 at 205.
s L . R . (1949) A . C. at 132.
would be without application tod ay.. To agree with th e. submission

made by learned counsel would be to negative the Sovereignty of Parlia
ment which in this country is now limited only in the manner set out
in the other sub-sections of Section 29. To extend the scope of judicial
review beyond that would appear to us to place in the Courts a new
power unrecognized by the Constitution at the expense of a power vested
in Parliament by the Constitution. W e find ourselves unable to uphold
any o f the arguments raised by Mr. Ponnambalam in order to impugn
Section 8 of Act No. 1 of 1962.
W hat we have stated above do not, however, dispose of all the objec
tions centering round the direction that a Trial at Bar be held by three
Judges without a jury. Counsel for the 19th defendant has raised the
objection that, even assuming that the power conferred on the Minister
to issue a direction is i n t r a v ir e s the powers o f the Legislature under the
Constitution or is not in conflict with them (since it was a power that
existed even before the Order in Council of 1946 was made by His Majesty
in Council), m a la J id es of the Minister in making the particular direction
in this case vitiates it.
W e had intimated to learned counsel that evidence to establish the

existence of m a l a f i d e s in the Minister of Justice would have been permitted
to be led only if he could have satisfied us that such evidence was relevant
and admissible. The learned Attorney-General has, in respect of this
question, brought to our notice a decision in an English c^se, undoubtedly
of the highest authority, which appears to us to be an effective bar to
our sustaining this particular objection outlined on behalf of the 19th
defendant. No attempt was made on behalf of the defendants to
distinguish this authority in any way and it affords a complete answer
to the point raised. W e refer to the case of S m i t h v . E a s t E l l o e R u r a l
D i s t r i c t C o u n c i l ,l where the House of Lords was called upon to consider
the interpretation to be placed on paragraph 16 of Part IV of Schedule I
of the Acquisition o f Land (Authorisation Procedure) Act, 1946, which
was in the following terms :—
16— “ Subject to the provisions of the last foregoing paragraph,

a compulsory purchase order or a certificate under Part II I of this
Schedule shall not, either before or after it shall be confirmed, made
or given, b e q u e s tio n e d i n a n y le g a l p r o c e e d i n g s w h a ts o e v e r . . .
The House of Lords held, by a majority, that the jurisdiction of the

Court was ousted by reason of the plain prohibition in paragraph 16.
Viscount Simonds, who was one of the judges comprising the majority,—
at p. 750— expressed himself thus :—
“ My Lords, I think that anyone bred in the tradition of the law

is likely to regard with little sympathy legislative provisions. for
ousting the jurisdiction of the Court, whether in order that the subject
may be deprived altogether of remedy or in order that his grievance
’» L. B . ( 1950) A . O. 736.
O R D E R OF C O U R T— The Queen v. Liycmage and others 347
may be remitted to some other tribunal. But it is our plain duty

to give the words of an Act their proper meaning and, for my part,
I find it quite impossible to qualify the words of the paragraph
in the manner suggested . . . . W hat is abundantly dear is that
words are used which are wide enough to cover any kind of challenge
which any aggrieved person may think fit to make. I cannot think
of any wider words. Any addition would be mere tautology. But,
it is said, let those general words be given their full scope and effect,
yet they are not applicable to an order made in bad faith. But,
My Lords, no one can suppose that an order bears upon its face the
evidence of bad faith. It cannot be predicated of any order that it
has been made in bad faith until it has been tested in legal proceedings,
and it is just that test that paragraph 16 bars. ”
On the same point, Lord Radcliffe, another of the judges who comprised
the majority, stated— at p. 769 :—
“ A t one time the argument was shaped into the form of saying
that an order made in bad faith was in law a nullity and that, conse
quently, all references to compulsory purchase orders in paragraphs
15 and 16 must be treated as references to such orders only as had
been made in good faith. But this argument is in reality a play
on the meaning of the word nullity. An order, even if not made
in good faith, is still an act capable of legal consequences. It bears
no brand of invalidity upon its forehead. Unless the necessary
proceedings are taken at law to establish the cause of invalidity and
to get it quashed or otherwise upset, it will remain as effective for
its ostensible purpose as the most impeccable of orders. And that
brings us back to the question that determines this case : Has Parlia
ment allowed the necessary proceedings to be taken ? ”
W e hold that all the objections taken in respect of the direction issued by
the Minister fail, and that Section 8 of Act No. 1 of 1962 is i n t r a v ir e s
the Legislature.
Next, as to the nomination. Much of the argument before us was

centred on an attack on Section 9 of Act N o. 1 of 1962 as being u ltr a v ir e s
the Legislature’s power to make law by a simple majority. It is a novel
provision of law raising in this case an interesting but difficult question
of law.
Section 9 may conveniently be reproduced here :—
9. “ Where the Minister of Justice issues a direction under Section

440 a of the Criminal Procedure Code that the trial of any offence
shall be held before the Supreme Court at Bar by three Judges
without a jury, the three Judges shall be nominated by the Minister
of Justice, and the Chief Justice if so nominated or, if he is not so
nominated, the most senior of the three judges so nominated, shall
be the president o f the Court.
The Court consisting of the three Judges so nominated shall, for

all purposes, be duly constituted, and accordingly the constitution of
that Court, and its jurisdiction to try- that offence, shall not be
called in question in any Court, whether by way of writ or
otherwise. ”
The decision in. S m it h y . E a s t E l l o e R u r a l D i s t r i c t C o u n c i l (supra) would

become applicable even in regard to the attempt to impugn the nomina
tion under Section 9 only if this section is itself i n t r a v i r e s the Legislature.
It has not been disputed by the Crown that this Court has, notwith
standing the wording of Section 9, jurisdiction to consider whether the.
.section is u l t r a v i r e s . In order to found this attack all counsel jwho
addressed us on behalf of the defendants contended that the Constitution
of Ceylon recognised a separation of powers of Government. W e were
referred to the Constitutions of many countries, notably those ofj the
United States of America, Australia, Canada, South Africa and India.
On the other hand, the Attorney-General contended that no separation
of powers exists under our Constitution, and that, if a separation, of
powers exists dehors the written Constitution, it is a separation after the
British method because we had been accustomed to that kind of separation
throughout the British occupation of this country.
In view of the fact that the Ceylon (Constitution) Order in Council of

1916 itself recites that His Majesty’s Government have reached the
conclusion that a Constitution on the general lines proposed by the
Soulbury Commission (which also conforms in broad outline, save as
regards the Second Chamber, with the Constitutional scheme put forward
by the Ceylon Ministers themselves) will provide a workable basis for
constitutional progress in Ceylon, we permitted counsel on both sides to
make reference to the text of parts o f the report of the Soulbury Com
mission itself, a course which Their Lordships of the Judicial Committee
approved in somewhat similar circumstances in K o d a k a n P i l l a i v .
M u d a n n a y a k e x. Counsel for the defendants referred us to paragraphs
395 and 396 of that Report (Ceylon— Report of the Commission on
Constitutional- Reform, Cmd. 6677, September 1945) wherein . the
Commissioners state :— I
- ■! -
395. “ In making these recommendations we have fully considered
the objections usually raised by those trained in the English tradition
to the establishment of a Ministry of Justice, on the ground that a
Ministry so designated is apt to blur— at least in the public mind— the
line of demarcation prescribed under English practice between the
Judiciary and the Executive. W e realise that Ceylon is accustomed to
the British system and that any departure from British principles
would be likely to meet with widespread opposition. ”
396. “ W e would therefore make it amply clear that in recommend

ing the establishment of a Ministry o f Justice we intend no more than
to secure that a Minister shall be responsible for the administrative side
1 (1953) 54 N . L. R . at 438.
O R D E R OS' COURT— The Queen u. Liyanage and others 349
o f legal business, for obtaining from the Legislature financial provision

for the administration of justice, and for answering in the Legislature
on matters arising out of it. There can, of course, be no question of
the Minister of Justice having any power of interference in or control
over the performance of any judicial or quasi-judicial function, or. the
institution or supervision of prosecutions...........”
The learned Attorney-General, on the other hand, referred us to

the Epilogue to the Report— paragraphs 408 to 410— wherein the
Commissioners state that—
“ The Constitution we recommend for Ceylon reproduces in large

measure the form of the British Constitution, its usages and conven
tions, and may on that account invite the criticism so often and so
legitimately levelled against attempts to frame a government for an
Eastern people on the pattern of Western democracy...........It is
easier to propound new constitutional devices and fresh constructive
solutions than to foresee the difficulties and disadvantages which they
may develop. A t all events, in reqommending for Ceylon a Con
stitution on the British pattern, we are recbmmending a method of
Government we know something about, a method which is the result
o f very long experience,, which has been tested by trial and error and
which works, and, on the whole, works well.
Be that as it m ay, the majority— the politically conscious majority
o f the people of Ceylon— favour a Constitution on British lines. Such
a Constitution is their own desire, and is not being imposed on them ___
iBut we think that Ceylon is well qualified for a Constitution framed
on the British model, and we regard our proposals as a further stage in
the evolution of the system under which Ceylon was governed prior to
1931— an evolution to some extent interrupted by the experiment o f
the Donoughmore Constitution of that year...........
W e think that it should be well within the capacity of a future
Government of Ceylon to operate a form of Constitution which does
not represent a novel and strange creation, but is the natural evolution
of a type of government with which the Ceylonese had for some time
been familiar. ”
While we have referred to the Report of the Soulbury Commission, the

question raised as to whether a separation of the three powers or functions
of Government is embodied in our Constitution must ultimately be
answered by an examination of the provisions of the Order in Council itself.
The learned Attorney-General, pointed out that under our Constitution
the Cabinet of Ministers who are all members o f the Legislature (i.e. of
the Senate or the House of Representatives) are all executive officers
and direct the executive functions of Government. The Chief Justice
and at least one other Judge of the Supreme Court are members of the
Judicial Service Commission, a body performing executive functions. It
must, however, not be overlooked that these are functions assigned to
them under the paramount law, the Constitution itself. It appears to us

unnecessary to go into this question at any length except to say th at if
by a separation of powers or functions of Government is meant a mutually
exclusive separation of such powers or functions as obtains in 'the
American Constitution or even in the Constitution of the Commonwealth
of Australia, which was itself based on the American Constitution, there
is no such mutually exclusive separation of governmental functions in
•our Constitution. Nor on the other hand do we have a sovereign' Par
liament in the sense in which that expression is used in reference to the
Parliament of the United Kingdom. That a division of the three main
functions of Government is recognised in our Constitution was indeed
conceded by the learned Attorney-General himself. For the purposes
of the present case it is sufficient to say that he did not contest that
judicial power in the sense of the judicial power of the State is vested
in the Judicature, i.e. the established civil courts of this country.
There is no dispute that the three of us, as constituting, for the pur--
poses of this Trial at Bar, the Supreme Court are called upon to- exercise
the strict judicial power of the State, and, in fact, we have, all three of us,
received at one time or another, but in each case before the Supreme
Court was so called upon to exercise judicial power, appointment by the
Governor-General acting under Section 52 (1) of the 1946 Order in Council.
; . i
It was strongly urged on behalf of the defence that the power of riomi-
hation reposed by the impugned section 9 in the Minister is, in pith and
substance, a power of appointment o f Judges of the Supreme Court
in contravention of the said section 52 (1), and that the three of us consti
tuted neither the Supreme Court nor a bench of Judges of the Supreme
Court but merely a tribunal appointed by the Minister from the panel
of Supreme Court Judges.
Whether or not the power of nomination granted to the Minister is

in tr a v i r e s the Constitution, there is, in our opinion, no doubt that this
Court is assembled as the Supreme Court holding a Trial at Bar in terms
of Section 440a of the Criminal Procedure Code and not as a separate
court or tribunal. W e have so assembled by virtue of a nomination
made by the Minister, and if that nomination be u lt r a v i r e s the Constitu
tion we are agreed that this Court is not a duly constituted panel of
Supreme Court Judges to hold a Trial at Bar as representing the
Supreme Court.
In support of the argument that this nomination is an appointment,

the defence, apart from leaning on a dictionary meaning o f the word—
“ appoint (a person) by name to some office or duty ”— relied on the
decision of the Privy Council in A t t o r n e y - G e n e r a l f o r O n ta r io v . 'A t t o r n e y -
G e n e r a l f o r C a n a d a 1. That case related to a conflict between the powers
of the Governor-General of Canada to appoint Judges vested in him
under Section 96 of the Canadian Constitution and a certain provision
i (1925) 94 L . J . (P. C .) 132— L . R. (1925) A . C. 750.
O R D E R O F C O U R T— The Queen v. Liyanage and others 351
in the Judicature Act of Ontario of 1924 passed by the Legislature of the

Province of Ontario which had been empowered by Section 92 of the
Dominion Constitution to make laws for the administration of justice
in:the Province, including the constitution, maintenance and organisation
o f the Provincial Courts.
By the Judicature Act of 1924, the Legislature of Ontario established
in lieu of the then existing Supreme Court a Supreme Court of Ontario
consisting of 19 Judges to be appointed by the Governor-General as
provided in the Constitution. This Court was divided into two Divisions—
the Appellate Division and the High Court Division. The rights of the
existing Judges were safeguarded, but the Act empowered the Lieutenant-
Governor of Ontario to assign some of the Supreme Court Judges to the
Appellate Division and some to the High Court Division. He was
also authorised to designate the Presidents of the two Divisions and they
were to be called the Chief Justice o f Ontario and the Chief Justice of
the High Court Division respectively.
The powers conferred on the Lieutenant-Governor by this Judicature
Act were challenged as being u ltr a v ir e s the Canadian Constitution.
Upholding the challenge, Viscount Cave, L. C., stated in the Judicial
Committee:—
“ W hat is the effect of these provisions ? It can hardly be doubted
that the result of these was to authorise the Lieutenant-Governor
of the Province to assign— that is to say, to appoint certain Judges of
the High Court to be judges of the Appellate Division of the Supreme
Court, and also to designate— that is to say, to appoint certain
Judges to hold the offices of Chief Justice of Ontario and Chief Justice
of the High Court Division. I f that is the real effect of the Statute,
, as it appears to be, there can be no doubt that the effect o f the Statute,
if valid, would be to transfer the right to appoint the two Chief Justices
and Judges of Appeal from the Governor-General of Canada to the
Lieutenant-Governor of Ontario in Council; and if so, it must
follow that the Statute is to that extent inconsistent with section 96
of the Act of 1867 and beyond the power of the Legislature of Ontario. ”
It is evident that in spite of the use of the words “ assign ” and

“ designate ’ ’ the effect of the 1924 Act was to restrict the powers of
appointment given to the Governor-General by the Constitution to an
appointment o f the Judges to the Supreme Court generally without
allowing him the right to appoint them to the two Divisions of that Court.
Clearly the Act purported to give the Lieutenant-Governor the right to
appoint Judges to particular offices as such, though his field of selection
was limited.
In the case before us the nomination of the Judges by the Minister
does not constitute an appointment to any new office or even to any
office as such. The Judges nominated by the Minister were already
Judges of the Supreme Court, and in holding a Trial at Bar under section
440a o f the Criminal Procedure Code they function as Judges of the
Supreme Court and in no other capacity.
The power o f nomination conferred on the Minister is no different* in

substance from the power exercised by the Chief Justice to nominate a
bench of Judges to hear and determine a cause either by virtue of his
statutory power under section 51 of the Courts Ordinance or by virtue
of his conventional function in nominating Judges to hear certain other'
matters. There are various provisions in the Courts Ordinance for the
hearing of appeals, applications and other cases in the exercise of the
original criminal jurisdiction of the Supreme Court by one, two, three
or more Judges. The power to nominate the judges in cases where no
express statutory provision has been made therefor appears to us to
reside in the Court, although it is correct to say that by convention it
is the Chief Justice who, for purposes of convenience, exercises such
power. Can it be seriously contended that every time the Chief Justice
so nominates a judge or judges, whether by virtue of his statutory or his
conventional powers, he is appointing judges to particular offices as
distinct and separate from the offices to which they were appointed by
the Governor-General ? Had the Minister, o f course, purported, to
nominate any person who did not hold the office of a Judge o f the Supreme
Court to officiate as a Judge at this Trial at Bar, he would undoubtedly
have been purporting to appoint a person to the office of a Judge in
contravention of section 52 (1) o f the Order in Council. W e therefore
think that the nomination of the judges by the Minister in this instance
is not an appointment by him o f any person to the office of a Judge o f
the Supreme Court. The nomination is not u lt r a v ir e s on that ground.
Nor do we think that it is possible for us to uphold the defence contention
that the Minister, by this act of nomination, has constituted or created
a new tribunal distinct and separate from the Supreme Court.
Another argument advanced by the defence was that the'Supreme

Court is one and indivisible and. that the power .of nomination given to
the Minister by section 9 violated the unity and indivisibility of the
Court. There can be no doubt that the existence of the Supreme Court
is impliedly entrenched by section 52 of the Order in Council, The
entrenched provisions in the Constitution in respect of the appointment,
tenure, salary and removal of Judges o f the Supreme Court will have
no meaning if the Supreme Court is abolished. W e are, however, unable
to accept the proposition that the entire j urisdiction vested in the Supreme
Court by the Courts Ordinance and other Statutes at the time of the
coming into force of the 1946 Constitution is also entrenched as part o f
the Constitution or that no part o f that jurisdiction can be removed and
vested in a judicial officer or otherwise abolished by Parliament by law
passed by a simple majority.
Section 6 of the Courts Ordinance enacts that there shall continue to

be within Ceylon one Supreme Court which shall be called “ The Supreme
Court ofthe Island of Ceylon ” . There was a similar provision in section 5
of the Charter of 1833 which established the Supreme Court. Under
the Courts Ordinance judges sitting apart singly or in various combinations
are empowered to exercise the several jurisdictions of the Supreme Court.
O R D E R O F CO U RT— The Queen v. Liyanage and others 355
powers are expressly or by implication excluded from the scope of Chapter

m (The Judicature) but what powers are expressly or by implication
included in it Is the power of nomination or selection o f judges to
hear a particular cause an implied power, in this sense, of the judicature.
On such occasions as our law (except in this impugned instance) has made
express provision therefor it has been reposed in a member o f the Judi
cature, and where no express provision has been made the implication is
strong that it is the Court itself that can effect the nomination or selection.
That indeed has been the un-questioned practice for about a century
and a half in this country.
The impugned section seeks to change this consistent and long-

established practice. Is the change i n t r a v i r e s the Legislature’s powers ?
“ I t is always a serious and responsible duty ” , said Isaacs J. in F e d e r a l
C o m m i s s i o n e r o f T a x a t i o n v . M u n r o l , “ to declare invalid, regardless of
consequences, what the national Parliament representing the whole
people of Australia, has considered necessary or desirable for the public
welfare. The Court charged with the guardianship of the fundamental
law of the Constitution may find that duty inescapable. Approaching
the challenged legislation with a mind judicially clear of any doubt as
to its propriety or expediency— as we must, in order that we may not
ourselves transgress the Constitution or obscure the issue before us— the
question is : Has Parliament, on the true construction of the enactment,
misunderstood and gone beyond its constitutional powers ? It is a
received canon, of judicial construction to apply in cases of this kind
with more than ordinary anxiety the maxim ‘ ut res magis valeat quam
pereat’ . Unless, therefore, it becomes clear beyond reasonable doubt
that the legislation in question transgresses the limits laid down in the
organic law of the Constitution, it must be allowed to stand as the
expression of the national w ill.”
Bearing this principle in mind and recalling also that the judicial
power of the State is vested in the Judicature (in which is included the
Supreme Court), let us examine the question whether the nomination or
selection of judges to hear a particular case, while itself not a part of the
strict judicial power or the essence of judicial power in the sense of the
definition of Griffiths C.J., is yet so much incidental to the exercise of
that power or an incident in the exercise of that power as to form part of
that power itself.
The Privy Council in the case of T h e S h e l l C o . o f A u s t r a l i a L t d . v.

F e d e r a l C o m m is s i o n e r o f T a x a t i o n 2 expressed itself in agreement with
Isaacs J. when he stated in F e d e r a l C o m m i s s i o n e r f o r T a x a t i o n v . M u n r o
( s u p r a ) that “ there are many functions which are either inconsistent
with strict judicial action, as the arbitral function in A l e x a n d e r 's c a s e ,
or are consistent with either strict judicial or executive action. If
inconsistent with judicial action, the question is at once answered. If
consistent with either strictly judicial or executive action, the matter
must be examined further. ”
* {1926) 38 0 . L. R . at 180. * (1931) A . O. at 275.
Then again, in T h e Q u e e n v . D a v i s o n *, Dixon C.J. and Me Tiernati J.

in the High Court of Australia, in referring to the observation of the
Court in Q u e e n V i c t o r i a M e m o r i a l H o s p i t a l v . T h o r n t o n ( s u p r a ) , which
we have already reproduced earlier, stated that “ it is this double aspect
which some acts or functions may bear that makes it so difficult to
define the judicial power. . . . An extreme example o f a function
that may be given to 'courts as an incident of judicial power or dealt
with directly as an exercise o f legislative power is that of making
procedural rules of court. The proper attribution o f this power is a
matter that has received much attention in the United States ” , where,
according to Dean Roscoe Pound’s thesis on the subject, historically
and analytically it is the function of the courts to regulate their procedure.
Said Dean Pound :—
“ In doubtful cases, however, we employ a historical criterion.

W e ask whether, at the time our Constitutions were adopted, the
power in question was exercised by the Crown, by Parliament, or
by the Judges. Unless analysis compels us to say in a given case
that there is a historical anomaly, we are guided chiefly by the
historical criterion.”
Said Dixon C.J. and Me Tiernan J. in D a v i s o n ’s c a s e (s u p r a ) at p. 369 :—
“ The truth is that the ascertainment of existing rights by the

judicial determination of issues of fact or law falls exclusively within
the judicial power so that Parliament cannot confide the function
to any person or body but a court constituted under sections 71 and
72 of the Constitution, and this may also be true o f some duties or
powers hitherto invariably discharged by courts under our system o f
jurisprudence but not exactly of the foregoing description. ”
In a case arising upon an interpretation of the American Constitution,

where the difficulty was in distinguishing between a legislative and a
judicial proceeding, it was held that the end accomplished may be
decisive. Said Holmes J. in P r e n t i s v . A t l a n t i c C o a s t L i n e C o 2 , “ the
nature of the final act determines the nature of the previous inquiry ” .
Though the purpose to which this test was put by Holmes J. was to
distinguish a judicial from a legislative function, Dixon C.J. and Me
Tiernan J. thought, and we respectfully agree with them, that it may
usefully be applied by analogy to ascertain whether a thing is done
administratively or as an exercise of judicial power.
A somewhat different approach to the problem appealed to K itto J.

in the same case— at pp. 381-2— when he stated :—
V It is well to remember that the framers of the Constitution, in

distributing the functions o f government amongst separate organs,
were giving effect to a doctrine which was not a product of abstract
reasoning alone, and was not based upon precise definitions of the
1(1954) 90 0 . L . B . at 369. * (1908) 211 U. S. 210.
O R D E R 03? COURT— The Queen v. Liyanage and others 357
terms employed . . . . and it is safe to say that neither in England

nor elsewhere had any precise tests by which the respective functions
of the three organs might be distinguished ever come to be generally
accepted. The reason, I think, is not far to seek......................the
separation of powers doctrine is properly speaking a doctrine not so
much about the separation of functions as about the separation of
functionaries . . . . For it still remains true firstly, that different
skills and professional habits are needed at the different levels of
law-making; and secondly, that concern for individual liberty will
always see one o f its chief safeguards in the precautionary disposal
of law-making power. It may accordingly be said that when the
Constitution of the Commonwealth prescribes as a safeguard of
individual liberty a distribution of the functions of government
amongst separate bodies, and does so by requiring a distinction to be
maintained between powers described as legislative, executive and
judicial, it is using terms which refer, not to fundamental functional
differences between powers, but to distinctions generally accepted
at a time when the Constitution was framed between classes of powers
requiring different “ skills and professional habits ” in the authorities
entrusted with their exercise.
For this reason it seems to me that where the Parliament makes a

general law which needs specified action to be taken to bring about
its application in particular cases, and the question arises whether
the Constitution requires that the power to take that action shall be
committed to the judiciary to the exclusion of the executive, or to the
executive to the exclusion of the judiciary, the answer may often be
found by considering how similar or comparable powers were in fact
treated in this country at the time the Constitution was in fact prepared.
Where the action to be taken is of a kind which had come by 1900 to
be so consistently regarded as peculiarly appropriate for judicial
performance that it then occupied an acknowledged place in the
structure of the judicial system, the conclusion, it seems to me, is
inevitable that the power to take that action is within the concept
o f judicial power as the framers of the Constitution must be taken
to have understood it. ”
As we have already stated, section 9 of Act N o. 1 of 1962 is a novel

provision of law the like of which does not hitherto appear to have
found a place in any recognised system of law. W e find ourselves
echoing here the words of Bonser C.J. used, in another context, in an
old Ceylon case, R o d e v . B a w a , 1 that “ there is no case exactly like this
to be found in the books, for I suppose such a case never happened before.”
The right of a judge to exercise judicial power is so inextricably bound
up with the actual exercise of the power and is such an essential step
in the exercise of the strictly judicial power that it must, in our opinion,
be considered part of the power itself. Unless the Legislature has
vested the exercise of any strictly judicial power in the entire Supreme
' 1 (1806) 1 N . L . R . at 374.
358 ORDER OF COURT— The Queen v. Liyanage and others
Court, it is necessary that a bench of Judges should be nominated to

exercise that judicial power vested in the Supreme Court. I f the power
of nomination is completely abolished, no judicial power vested in the
court can be exercised. I f that power is vested in an outside authority,
it will legally be open to such authority to exercise that power to prevent
a particular judge or judges from exercising any part o f the strictly
judicial power vested in them by the Constitution as judges of. the
Supreme Court. The absurdity of such a possible result will be more
marked if, instead of the position of a Puisne Justice of the Court, the
position of the Chief Justice himself be considered. Under a provision
of law of this nature it seems to us legally possible to exclude the Chief
Justice himself from presiding in the Court of which he is the constitu
tionally appointed Head. The exercise of the power to nominate can
then in practice result in a total negation of the judicial power of a judge
or judges vested in them by the Constitution.
Then, again, if the power to nominate or select judges can be constitu

tionally reposed in the Minister on the ground that it is no more than
an exclusively administrative act, we can see nothing in law to prevent
such a power being conferred on any other official, whether a party
interested in the litigation or not. The fact that the power o f nomination
so conferred is capable of abuse so as to deprive a judge of the entrenched
power vested in him by virtue of his appointment under section 52
of the Order in Council, or at least to derogate from that power, is a
consideration which is not an unimportant one in deciding whether
the conferring of this power by section 9 on a person who is not a judge
of the Supreme Court is u ltr a v i r e s the Constitution.. It may, o f course,
be contended that the power is capable of abuse even if it is granted
to a Judge of the Supreme Court or, for tha,t matter, to the entire Court.
However, the proper authority under the Constitution to exercise jthis
power appears to be the Judicature itself. 1 '•
Although the cases to which we have made reference in this Order

have been decided in Australia or the United States of America against
the background of their respective Constitutions, it does not appear
to us to bo illegitimate to apply the tests referred to therein in a solution
of the problem with which we are confronted in this case.
Applying the historical test indicated by Dean Pound or following the

approach approved in the judgment of K itto J. we have referred to, we
are met with the fact that at all times prior to the enactment of the
Criminal Law (Special Provisions) A ct, No. 1 of 1962, this power of
nomination was invariably vested in the Judicature. Whenever there
was no express vesting of this power it was always exercised by Her
Majesty’s Courts and the Judges thereof. As we have already stated,
no instance has been cited either in this country or in any country of the
British Commonwealth of Nations where such a right of nomination or
selection has been granted to anyone outside the Judicature.
ORDER OR COURT— The Queen v. Liyanage and others 359
On the other hand, ifw e were to apply what may be termed, for brevity,
as the H o l m e s te s t and inquire what is the end or purpose in view in making
this nomination there can he only one answer, viz. to exercise the strictly
judicial power of the State. In this sense too, the Statute has purported
to confer judicial power on the Minister.
For reasons which we have endeavoured to indicate above, we a re.

o f opinion that because
(a) the power of nomination conferred on the Minister is an inter

ference with the exercise by the Judges of the Supreme Court
of the strict judicial power of the State vested in them by
virtue of their appointment in terms of section 52 of the' Ceylon
(Constitution) Order in Council, 1946, or is in derogation
thereof, and
(b ) the power of nomination is one which has hitherto been invariably
exercised by the Judicature as being part of the exercise of
the judicial power of the State, and cannot be reposed in anyone
outside the Judicature,
section 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, is

u ltr a v i r e s the Constitution.
This conclusion we have reached on the validity of the law conferring

the power of nomination on the Minister deprives us of jurisdiction to '
enter upon a Trial at Bar of these defendants. In ordinary circums
tances, therefore, there would have been nothing more to be said at this
stage. W e, nevertheless, propose to refer to another objection of a
fundamental character raised by Mr. Ponnambalam and supported by
other counsel for the defence. Even if the power of nomination is in t r a
v i r e s the. Constitution, does it offend, in the context of this particular
case, against that cardinal principle in the administration of justice
which has been repeatedly stated by Judges and which was restated in
1924 by Lord Hewart C. J. in M v . S u s s e x J u s t i c e s , e x p a r t e M e C a r t h y 1
as follows :—
“ It is not merely of some importance, but is of fundamental impor

tance that justice should not only be done, but should manifestly and
undoubtedly be seen to be d o n e............. Nothing is to be done which
creates even a suspicion that there has been an improper interference
. with the course of justice. ”
Under section 440a of the Criminal Procedure Code as it stood prior

to 1962 the Minister had merely the right to direct that the trial be held
before the Supreme Court by three Judges without a jury. But the
new legislation, passed, with retroactive effect, after the commission of
the offences alleged, has purported to vest in the Minister, a member
of the Government which the defendants are alleged to have conspired
to overthrow by unlawful means and who, it was not disputed, had
1 (1924) 1 K . B . at 259.
3G0 O R D E R OF COURT— The Queen v. Liyanage and others
participated in the investigation and interrogation of some of the defen

dants, the additional power to nominate the three Judges. This power,
as indicated already, had hitherto been vested in the Supreme Court
as a body or in the Chief Justice, but certainly in no person or body
outside the Judicature. This is the first occasion on which an attempt
has been made to vest this power in such an outsider, and that too in
circumstances where the propriety of the nomination becomes, by reason
of the doctrine of ministerial responsibility, discussable in Parliament
involving, perhaps, the merits and demerits of respective Judges, whereas
under the previous law the Judges enjoyed freedom from being the
subject of such a discussion.
A court cannot inquire into the motives of legislators. The circum
stances set out above are, however, such as to put this court on enquiry
as to whether the ordinary or reasonable man would feel that this court
itself may be biassed. W hat is the impression that is likely to be created
in the mind of the ordinary or reasonable man by this sudden and, it
must be presumed, purposeful change of the law, after the event, affecting
the selection of Judges ? W ill he not be justified in asking himself,
“ W hy should the Minister, who must be deemed to be interested in the
result of the case, be given the power to select the Judges whereas the
other party to the cause has no say whatever in a selection ? Have not
the ordinary canons of justice and fairplay been violated ?” W ill he
•harbour the impression, honestly though mistakenly formed, that there
has been an improper interference with the course of justice ? In that
situation will he not suspect even the impartiality of the Bench thus
nominated ?
Examining previous instances where this principle has been applied,

we find Swift J. in B v . E s s e x J u s t i c e s , e x p a r t e P e r k i n s 1 stating that
“ it is essential that justice should be so administered as to satisfy reason
able persons that the tribunal is impartial and unbiassed” , and Bucknill
•J. observing in C o ttle v . C o ttle 2 that the test to be applied is “ whether
or not a reasonable man in all the circumstances might suppose that
there was an improper interference with the course of justice.” Our
own Court of Criminal Appeal has, in T h e K i n g v . B e y a l S i n g h o 3, formu
lated the rule thus :— “ Nothing is to be done which raises a suspicion
that there has been an improper interference with the course of justice. ”
Guiding ourselves by these tests and those applied in o th e r c a s e s 4 wc

have examined, we find it difficult to resist the conclusion that the power-
of nomination conferred on the Minister offends the cardinal principle
as restated by Lord Hewart. For that reason, even had we come to a
1 (1027) 2 K . B . at 4SS. 2 (1939) 2 A . E. B . 541.
3 (1946) 4S N . L . R. at 27.
4 (a) Eckerslcy v. M ersey Docks and Harbour Board, (1S94) 2 Q. B. 670.
(b) R od ev. Bawa (supra).-
(c) Dingiri Mahalmaya v. Mudiyanse, (1922) 24 N . L. R . 377.
(d) Ruthira Reddiar v. Subba Reddiar (1937) 39 N . L. R . 14.
(e) The K in g v. Caldera (1933) 11 C. L. W . 1.
(J) Kandasamy v. Subramaniam (1961) 63 N. L . R . 574.
O R D E R OF CO U R T— The Queen v. Liyanage and others 361
different conclusion regarding the validity of section 9 of the Criminal

Law (Special Provisions) Act, we would have been compelled to give way
to this principle which has now become ingrained in the administration
o f common justice in this country.
Sgd. T . S. F ern a n d o ,
Puisne Justice.
Sgd. L . B . d e Sil v a ,
Puisne Justice.
S g d . P . S r i S k a n d a R a ja h ,
Puisne Justice.
P r e l i m i n a r y o b je c t i o n a s to j u r i s d i c t i o n o f th e C o u r t u p h e ld .
Document “ A ” .
Direction under Section 440 a ol the Criminal Procedure Code as amended

by Section 4 of the Criminal Law (Special Provisions) Act, No. 1 of 1962
T o the Honourable the Chief Justice o f the Supreme Court o f the Island o f Ceylon.
I, Samuel Peter Christopher Fernando, Minister o f Justice, b y virtue o f the power

vested in me b y Section 4 4 0 a (1) (a) o f the Criminal Procedure Code, as amended by
Section 4 o f the Criminal Law (Special Provisions) A ct, N o. 1 o f 1962, do hereby
direct that the trial o f the following persons, to wit,
1. D on John Francis Douglas Liyanage
2. Maurice Ann Gerard de Mel
3. Frederick Cecil de Saram
4. Cyril Cyrus Dissanayaka
3. Sidney G odfrey de Zoysa
6. Gerard R oy ce Maxwell de Mel
7. AVilmot Selvanayagam Abraham
5. Bastianpillai Ignatius Loyola
9. W ilton George W hite

10. Nimal Stanley Jayakody
11. A nth on y John Bernard Anghie
12. D on Edm ond Weerasinghe
13. N oel V ivian M athysz
14. V ictor Leslie Bercival Joseph
15. Basil Rajandiram Jesudasan
16. V ictor Joseph Harold Gunasekera
17. Joh n A nthony Rajaratnam Felix
18. W illiam Ernest Chelliah Jebanesan
19. Torronco V ictor Wijcsingho
20. Lionel Christopher Stanley Jirasinghe
21. Vithanage Elster Perera
22. D avid Senadirajah Thambyah
23. Samuel Gardner Jackson
24. R od n ey de Mel
in respect o f the following offences under Chapter V I o f the Penal Code, to wit,
1. That on or about tho 27th day o f January, 1962, at Colombo, Kalutara,

Ambalangoda, Galle, M atara and other places, they w ith others did conspire to
wage war against the Queen and thereby committed an offence punishable under
Section 115 o f the Penal Code as amended b y Section 6 (2) o f the Criminal.
Law (Spocial Provisions) A ct, No. 1 o f 1962, read with Section 114 o f the Penal
Code. j
2. That on or about tho 27th day o f January, 1962, at Colombo, Kalutara,
Ambalangoda, Galle, Matara and other places, they with others did conspire to
overthrow otherwise than b y lawful means the Governm ent o f Ceylon by, law
established and thereby committed an offence punishable under Section 115 o f the
Penal Code as amended b y Section 6 (2) o f the Criminal Law (Special Provisions)
A ct, N o. 1 o f 1962.
3. That on or about the 27tb day o f January, 1962, at Colombo, Kalutara,

Ambalangoda, Galle, Matara and other places, they with others did prepare to
overthrow otherwise than b y lawful means the Government o f Ceylon b y law
established and thereby com m itted an offence punishable under Section 115 o f
the Penal Code as amended by Section 6 (2) o f the Criminal Law (Special
Provisions) A ct, N o. 1 o f 1962.
be held before the Supreme Court at Bar b y throe Judges w ithout a Jury.
Given under m y hand this 23rd da y o f Juno, 1962, at Colombo.
Sgd. Sam. P. C. Fernando.

Minister o f Justice.
O R D E R OF CO U RT— The Queen v. Liyanage and others 363
Document “ B
IN THE SUPREME COURT OF TH E ISLAND OF CEYLON
Inlormation
Information exhibited by Her Majesty's Attorney-General
T he Q ueen
vs.
1. D on John Francis Douglas Liyanage
2. Maurice Ann Gerard de Mel
3. Frederick Cecil de Sarain
5. Sidney Godfrey de Zoysa
C. Gerard R oy ce Maxwell de Mel
7. W ilm ot Selvanayagam Abraham
S. Bnstianpillai Ignatius Loyola
9. W ilton ‘George W hite
11. Anthony John Bernard Anghie
13. N oel Vivian Mathysz
14. V ictor Leslie Percival Joseph
1C. V ictor Joseph Harold Gunasekera
17. John Anthony Rajaratnam Felix
18. William Ernest Chelliah Jebanesam
19. Terrence Victor W ijesinghe
20. Lionel Christopher Stanley Jirasinghe
21. Vithanage Elster Perera
22. David Senadirajah Thambyah
Defendants.
This 23rd day o f June, 1962.
364 O R D E R OE COURT— The. Queen v. Liyanage and others
BE it remembered that Douglas St. Clive Budd Jansze’, Esquire, Queen’s Counsel,
Her Majosty’s Attorney-General for the Island of Ceylon, who for Her Majesty in
this behalf prosecutes, gives the Court to understand and be informed that—
1. On or about the 27th day of January, 1962, at Colombo, Ealutara,
Ambalangoda, Galle, Matara and other places within the jurisdiction of this
Court, the defendants abovenamed with others did conspire to wage war against
the Queen and did thereby commit an offence punishable under Section 115 of the
Penal Code as amended by Section 6 (2) of the Criminal Law (Special Provisions)
Act, No. 1 of 1962, read with Section 114 of the Penal Code.
2. At the time and places aforesaid and in the course of the same transaction
the defendants abovenamed with others did conspire to overthrow otherwise than
by lawful means the Government of Ceylon by law established and did thereby
commit an offence punishablo under Section 115 of the Penal Code as amended by
Section 6 (2) of tho Criminal Law (Special Provisions) Act No. 1 of 1962.
3. At the time and places aforesaid and in the courso of the same transaction
the defendants abovenamed with others did prepare to overthrow otherwise than
by lawful moans tho Government of Coylon by law established and did thoreby
commit an offence punishable under Section 115 of tho Penal Code as amended by
Section 6 (2) of the Criminal Law (Special Provisions) Act, No. 1 of 1962.
WHEREUPON Her Majesty’s Attorney-General prays the consideration of the

Court here in the premises, and that due process of law may be awarded against tho
defendants abovenamed, in this behalf to make them answer to Our Sovereign Lady
the Queon touching and concerning the premises aforesaid.
Sgd. D. Jansze,
Attorney-General.
Document “ C
Nomination made by the Minister oi Justice under Section 9 of the Criminal

Law (Special Provisions) Act, No. 1 of 1962
W H E R EAS, I, SAMUEL PETER CHRISTOPHER FERNANDO, Minister of

Justice, havo on tho Twenty-third day of June 1962, issued a direction undor
Soction 4 4 0 a of the Criminal Procedure Code, as amended by Section 4 of tho
Criminal Law (Special Provisions) Act, No. 1 of 1962, requiring that the trial of the
following persons, to wit,
1. Don John Francis Douglas Liyanage
2. Maurice Ann Gerard de Mol
3. Frederick Cecil de Saram
5. Sidney Godfrey de Zoysa
ORDER OF COURT— The Queen v. Itiyandge and others 365
6. Gerard R o y ce Maxwell de Mel
7. W ilm ot Selvanayagam Abraham
8. Bastianpillai Ignatius Loyola
9. W ilton George White
11. A nthony John Bernard Anghie
13. N oel Vivian Mathysz
14. V ictor Leslie Percival Joseph
16. V ictor Joseph H arold Gunasekera
17. John Anthony Rajaratnam Felix
18. William Ernest Cholliah Jebanesan
19. Torrence V ictor Wijesinghe
20. Lionel Cliristopher Stanley Jirasinghe
21. Vithanege Elster Perera
22. D avid Senadiraj ah Thambyah
in respect of the following offences under Chapter VI of the Penal Code, to wit,
1. That od or about the 27th day of January, 1962, they with others did
conspire to wage war against the Queen and thereby committed an offence
. punishable under Section 115 of the Penal Code as amended by Section 6 (2) of the
Criminal Law (Special Provisions) Act, No. 1 of 1962, read with Section 114 of the
Penal Code.
2. That on or about the 27th day of January, 1962, they with others did
conspire to overthrow otherwise than by lawful means the Government of Ceylon
by law established and thereby committed an offence punishable under Section 115
of the Penal Code as amended by Section 6 (2) of tho Criminal Law (Special
Provisions) Act, No. 1 of 1962.
3. That on or about the 27th day of January, 1962, they with others did
prepare to overthrow otherwise than by lawful means the Government of Ceylon
by low established and thereby committed an offence punishable under Section 115
of the Ponnl Code as amended by Section 6 (2) of tho Criminal Law (Special
Provisions) Act, No. 1 of 1962.
3C6 Rajcawararance v. Sunihararasa
bo hold bofore the Supreme Court at Bar by three Judges .without a Jury :
NOW THEKEFORE, I, Sam u el P e t e r Christo ph e r F e r n a n d o , Minister
of Justico, in pursuance of the power vested in me by Section 9 of the Criminal
Law (Special Provisions) Act, No. 1 of 1962, do hereby nominate
(1) T he H o n o u r ab le T husew Sam u el F e r n an d o , C.B.E., Q.C.
(2) T h e H o n o u r ab le L eonard B e r n ic e D e Sil v a
. (3) T h e H on ourab le P o n n u d u r a is a m y Sr i Sk a n d a R a j a h
Judges of the Supreme Court of the Island of Ceylon, to be the three Judges who
shall presido over the trial of the aforementioned persons to bo held in pursuance of
tho aforementioned direction.
Given under my hand this 23rd day of June, 1962.
Sgd. Sam. P. C. Fernando,

M inister o f Justice.
To The Honourable the Chief Justice,

Colombo.

060 NLR NLR V 64 THE QUEEN v. D. J. F. D. LIYANAGE and Others PDF

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060 NLR NLR V 64 THE QUEEN v. D. J. F. D. LIYANAGE and Others PDF

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The Queen v.

Liyanage and others SIS

1962 Present: T . S. Fernando, J ., L . B. de Silva, 3., and Sri Skanda R ajah , J .

W QTJEEN v. D ..J . F . D . L IY A N A G E and others

Trial at Bar No. 1 of 1962

Section 2 o f the Official Language A ct, N o. 33 o f 1956, reads as fo llo w s :—

Provided that where the Minister considers it impracticable to commence

Sections 8 and 9 o f the Criminal Law (Special Provisions) A ct, N o . 1 o f 1962,

“ 8. A n y direction issued b y the Minister o f Justice under section 440A

1 4 ,16.& 16— lxtv ■ :-

(Special Provisions) A c t, he filed in th e Court a docum ent nominating three

(iii) th at tho provision in section 8 o f the Criminal L aw (Special Provisions)

O r d e r made in respect of certain preliminary objections taken to a

; The (Ceylon) legislature is not supreme and not.-merely Section 29

A-'country may be politically sovereign without wtetlegislature being

Tlie Courts cannot avoid considering the question of jurisdiction in

■(i)I In the context o f the constitutional position of the time, the

• ; (ii). ,The substitution o f “ the'Minister o f Justice, ” for “ the Governor

of the Cabinet cannot be equated to the impersonal. Head of State.

It is incongruous that the sanction of the Governor-General' is

Other consequences (anomalies and contradictions) would flow from

(iii) The direction of the Minister is also invalid because it is a direction

Certain dates are significant: Onthe22ndtwonewjudges were appointed

The nomination of the Judges by the Minister was a violation of the

It is quite clear that the Constitution tried to establish the independence

The relevant sections of the Criminal Law (Special Provisions) Act

the institution of the Supreme Court. In addition it is repugnant to

Nowhere can an “ alien ” hand interpose itself and attempt to nominate

The position of the Minister of Justice as recommended in Articles

[In reply to Court, Counsel said that it was particularly section 9 of

The nomination of Judges is an interference with the judicial process.

[Replying to a question by Court whether Act 1 of 1962 would have

. Section 29 of the Constitution Order in Council of 1946 provides

W e have had Constitutions and changes of Constitutions but the

As soon as the information is laid the Supreme Court takes cognizance

Neither the Tamil Language (Special Provisions) Act No. 28 of 1958,

It is not contended that Sinhala is the language of the legislature

S. with E . A . G . d e S ilv a , L . K a d ir g a m a r and R . L .

S. J. with A . C . M . A m e e r , E . A . G . d e S ilv a and

Next there was the Anglo-Saxon period in England— Henry II made

• In Ceylon before 1796 there existed for a long period an independent

The terms of the capitulation on 5 .1 1 .1 7 9 6 — clauses 16, 23 and

Effect of Sec. 9 of Act No. 1 of 1962 is to undermine all three pillars

Judicial power can only arise by virtue o f an appointment by the

“ Nominate” means in fact “ appoint” . “ Nom inate” means to

Once the Governor General appoints a Judge of the Supreme Court

In Ceylon a Judge of the Supreme Court holds office till he is 62 years

The Minister can withdraw the nomination on any ground ; there is

The vesting of the power of nomination in the Minister under Sec. 9

The power of nomination is an incident in judicial power which is

The! doctrine of the separation of powers is part and parcel o f the

In Ceylon this doctrine has been recognised from as far as 1833 so

The Ceylon Constitution Order-in-Council deals with separation of

The function of selecting Judges to hear a particular case is a function

I t is also a well known rule of interpretation that where a person is

The tests by which whether an ancillary function is a part of the judicial

[T. S. F e e n a n d o , J.—When a Judge o f the Supreme Court is appointed

Once it is recognised that there is a separation, then it follows you

'The question is whether the Minister in exercising his discretion in

.There is no provision in the Courts Ordinance, the Criminal Procedure

The direction issued by the Minister of Justice under Section 8 of the

There is no separation of powers in the Ceylon Constitution as found

Commission. The power of nomination of Judges is clearly not an exer

In constitutions such as those of the United States and the Common

In Ceylon there is a clear separation of powers. Apart from autho

In regard to the responsibility of the Minister to Parliament, see S ta n d

Acting under Section 8 8 the Governor by Proclamation of 18th Septem